IMPLICATIONS ARTICLE 370

Implication of article 370 Article 370 is the procedural mechanism of extending Indian Constitution in the State of Jammu and Kashmir. But under the cover of article 370 hurdles created in implementation of important articles of Constitution of India and various welfare laws in the State of Jammu and Kashmir. Article 370 was abused and more than 130 laws are not implemented in the State. RTI, RTE, Prevention of corruption act, and laws related to STs, OBC etc are not implemented in the State. By misusing the article 370, A presidential orders was passed in 1954. The order clearly says “ in exercise of the powers conferred by clause (1) of article 370 of the Constitution , the President , with the concurrence of the Government of State of Jammu and Kashmir , is pleased to make the following order…..This order further says “ after article 35, the following new article shall be added, namely”:- Article 35A. Saving of laws with respect to permanent residents and their rights. - Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereinafter enacted by the Legislature of the State: (a) Defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; (b) Conferring on such permanent residents any special rights and privileges, or imposing upon other persons any restrictions, as respects:- (i) Employment under the State Government; (ii) Acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provisions of this Part. Comment- Under the rights and privileged conferred by article 35A of our constitution Jammu Kashmir assembly defined Permanent Resident Ship section in their constitution. 2. Artcile 35A was extended through The Constitution (Application to Jammu and Kashmir) order, 1954. C.O 48 3. The order clearly says “in exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the Government of State of Jammu and Kashmir 4. By doing so they restricted the rights of people of the country in the State. It is clear violation of article 14, 16 and 19 of Union Constitution. . Section -6 Permanent residents:-{1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954- (a) he was a State Subject of Class I or of Class II; or (b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date. (2) Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or of Class II and who having migrated after the first day of March, 1947, to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State. Comment- Jammu Kashmir State Constituent Assembly autocratically defined State Subject law and even saved the rights for the people had gone to Pakistan while on the Other around 300000 West Pakistani Refugees living in Jammu still do not have citizen ship rights of Jammu and Kashmir Implications of article 370 A). 73rd and 74th amendment to Constitution of India. SCongress says Panchayati Raj Act was the dream of Late Rajiv Gandhi and talks of the common man of India but failed to strengthen the Panchayati Raj in J&K. Rahul Gandhi visited Jammu recently and said “Empowering Panchayats won't happen overnight,” For the last 10 Years Congress is in the power in the State as well as in Center. Rahul Says. This is a biggiest Joke to people of the State and Panch Sarpanches who are in continuous struggle for their rights. B). Prevention of corruption act, 1989. C). Reservation for OBC'S. D.No political reservation to ST's of the State. E). Fundamental Duties not applicable in J & K:- The constitutional amendment introducing “fundamental duties” is not applicable for J & K. This defeats the very purpose of including “fundamental duties” in the Constitution of India. F). As the Representation of People Act, 1951 and De-limitation Act,2002 and various amendments therein are not applicable to J & K, there is injustice to a large number of population in Jammu and Ladakh which is getting lesser representation in Parliament when compared to Kashmir valley. Distant Backward Remote areas of Kathua.. Udhampur…Bhaderwah… Doda…. Rajouri.. Poonch… Rajouri… Kupwara… Kargil.. Ladakh not given their due representation in the in Legislative Assembly ( MLAs) G). No financial accountability is being maintained in the State. CAG reports again and again pointed that “The financial management in State was poor. The contributory factors attributable to failure of the schemes include lack of proper planning, non-release of funds, non-adherence of eligibility criteria and lack of supervision and monitoring." The latest report (2010-2011) from the Comptroller and Auditor General (CAG) points to a systematic pattern of institutional misgovernance in J&K. This systematic and institutionalized mis-governance is not new to the state. From the very beginning transparency and accountability was given a goodbye and free for all system of loot of public money was encouraged by responsible people. Height of insensitivity lies in the fact that deprived sections of the society are denied their due even after garnering huge funds from the centre in the name of their welfare. H). Discrimination with women, who are married out of State. Once she got married with a person who does not have State. Her children can’t get admission in State colleges or universities, can’t be employed in the State. . Stand of Omar and his s Party on Women rights 1. In 2002 a verdict came in the case that women marrying with a non State Subject wont loose her State Subject Rights. The three judges on the Bench were Acting Chief Justice Vijay Kumar Jhanji, Justice T S Doabia and Justice Muzaffar Jan. On October 7, 2002, the Bench headed by Justice Jhanji announced that the ``daughter of a permanent resident of the State of Jammu and Kashmir will not lose status as a permanent resident of the State of Jammu and Kashmir on her marriage with a person, who is not a permanent resident of the State of Jammu and Kashmir’. 2. Mufti Mohammed Sayeed’s government tried to overturn the verdict of High Court of Jammu in March 2004 when it brought it in the infamous Bill named ``The Jammu and Kashmir Permanent Resident (Disqualification) Bill 2004’’ 3. The preamble of Bill says ““A Bill to provide for disqualification from being a permanent resident of the State on marriage of a female permanent resident with a non-permanent resident”. 4. Omar’s Party supported the Bill in Assembly. 5. The Bill was passed by the Legislative Assembly unanimously within six minutes of being moved by Law Minister Muzaffar Hussein Beigh of the Peoples Democratic Party (PDP). 6. But, the Bill got defeated in the Legislative Council and did not become a law. This was achieved as Chairman of the Legislative Council Abdul Rashid Dar, of the National Conference (NC), adjourned the House sine die. 7. Omar was so furious that he held Abdul Rashid Dar responsible for not passing the bill and expelled him from the party on 12th march.(News Published in The Tribune of 12th March is attached). I). Implementation of RTI is also very poor. Jammu and Kashmir is the only State which has three versions of RTI law. Three Chief Minister and three RTIs. Every Chief Minister tried to mould it for their benefits. None of them think of people. Getting information in the State is 5 times costlier in comparison to Delhi. J). J & K is also lagging behind in rights of children and other progressive laws- Even the “Right to Education Act” is not applicable for J & K thereby denying the rights of children and exposing them to the vagaries of uncertainties of life. Statements of various activists from Women, Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs). Published in the news paper URL- http://www.tribuneindia.com/2013/20131203/j&k.htm#14 Article 370 biggest hurdle in extending Central schemes to weaker sections Tribune News Service Jammu, December 2 The BJP’s prime ministerial candidate’s, Narendra Modi, challenge on debate on the Article 370 has surcharged the political atmosphere in the winter capital of the state as propagators of this Article exchanged barbed with the BJP for raking up this issue. Women, Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs) activists have opposed this Article, arguing that it is the biggest obstacle in extending various schemes formulated for their betterment in Jammu and Kashmir. 'Abrogation will help STs get benefits of schemes' Choudhary Anwar Hussain, advocate and leader, Gujjar United Front “The Article 370 is the biggest hurdle in extending various welfare schemes in the state. Abrogation of this Article will help the STs to get direct benefits of various schemes meant for them.” He pointed out that the successive state governments had been brazenly taking excuse of this Article to deny reservation rights to the STs in the state. “Abolition of this Article will help the weaker sections to avail benefits of schemes meant for them,” he said. 'Ruling elites abusing the Article' Tulsi Dass Langeh, president, state BSP unit “Ruling elites of the state have been abusing this Article to deprive the weaker sections of their constitutional rights. Unlike other parts of the country, OBCs are being denied of their reservation rights in the state.” He said SCs and STs were also victims of this Article. “The ruling class in the state is taking shield of the Article to deny constitutional rights to the OBCs here,” he said. 'We are not against the Article but it is against us' Dr Javed Rahi, scholar and researcher on tribal “We are not against the Article 370 but this Article is against us,” said Dr Javed Rahi. “Many constitutional guarantees for the STs are not directly implemented in the state due to this Article,” he said and added that the Forest Right Act, 2001, and the SC/ST Atrocities Act were yet to be implement in the state as approval of the state Assembly was must to extend these Acts in the state. OBCs bear maximum brunt Deepak Kumar, social activist working for OBCs in J&K “Although most of the weaker sections are victims of the Article 370, OBCs are bearing the maximum brunt of this Article,” he said and pointed out that the OBCs in other parts of the country were getting 27 per cent reservations as per the recommendations of the Mandal Commission but in Jammu and Kashmir, they were not even identified. “The Article 370 has been used as a shield by the ruling class to create hurdles in implementing the Mandal Commission recommendations in the state,” he said and supported the demand of having a debate on this Article. 'Special status abused by ruling class' RK Kalsotra, state convener, Confederation of SC,-ST-OBCs organization “The questions raised by BJP leader Narendra Modi are not new,” he said, and added: “It’s a fact that special status has been abused by the ruling class of the state to deny constitutional rights to the weaker sections.” “I don’t want to indulge into this debate but the state government has to reply the questions raised by Modi on the impact of the Article 370 on the weaker sections.” 'The Article is irrevocable, permanent' Saifuddin Soz, JKPCC chief “Narendra Modi is factually wrong. He is not aware of the history of the state,” he said and accepted the challenge of Modi to have an open debate on the Article 370, which according to Soz is irrevocable. “Article 370 is permanent and even Parliament of India cannot change this Article,” he said and added that the Article was a bridge between Jammu and Kashmir and rest of the country. He said it was all due to the efforts of the Congress leadership that the Women Disqualification Bill was defeated in the Assembly. “Women married outside the state have the constitutional rights like other women of the state,” he said. 'Omar distorting facts to mislead masses' Jugal Kishore Sharma, state BJP president Accusing Chief Minister Omar Abdullah of distorting facts to mislead the general masses, Sharma today accepted his challenge to hold a debate on the Article 370 and the results that followed on the implementation of this Article. “He must come forward to hold a debate on the Article with any BJP leader,” he said, and added that both the Congress and the NC had consistently misused the Article 370 to deprive the people of the state of their fundamental rights and promote communalism, separatism and politics of regional discrimination. “It is because of this Article that the refugees from the West Pakistan could not obtain citizenship rights and the Supreme Court in 1980s regretted that it is because of the state’s special status that it could not dispose of writ petition in their favour,” he said. Issue related to State Assembly report 6 year term of the Assembly is a grim reminder of the authoritarian Emergency period from 1975 to 1977 which has gone down as the darkest phase in the history of independent India and a blotch on democracy. The then Prime Minister Indira Gandhi with the help of the then President, Fakr-ud-din Ali Ahmed,managed the infamous 42nd Amendment (1976) of the Indian constitution simply to defer elections to Parliament as well as State legislatures and thus facilitate uninterrupted continuance of the autocratic rule unleashed by her but the Amendment was promptly reversed when the Janata Party Government took over under Prime Minister Morarji Desai with Atal Behari Vajpayee and L.K. Advani as senior cabinet Ministers. Ironically, the then J&K Government headed by Sheikh Abdullah was quick to adopt the Center's Amendment extending Assembly's term from 5 to 6 years,it conveniently turned a blind eye to the Center's legislation (44th Amendment) reversing the Amendment to restore the term back to 5 years. As a result, the J&K Assembly term continues to be 6 years ever since the 1977 elections. The fact that Article 370 has been selectively used,or misused, to suit the convenience of a small coterie of ruling polity in the State with no concern for the welfare of people. NC Government should explain , what "advantage" it saw in adopting 6 year term notwithstanding Article 370 and what "disadvantage" it now sees in reverting to 5 year term citing the constraints of Article 370 ? Some Points on non implementation of Panchayti Raj 1. There are over 33,000 elected panches and sarpanches in the state. 2. A total of 10 village council members, including panches and sarpanches, have been killed by militants since the May-June 2011 panchayat polls till March 2013. Government is failed to provide them Security 3. For the Last 10 Years Congress is in Power in the State of Jammu and Kashmir, several promises have been made but nothing has been done. 4. A group representing Panch Sarpanches met Rahul Gnadhi on 27 Sep. 2012 to secure working conditions, apart from greater devolution of powers. "Gandhi promised to look into their demand including for a compensation of Rs 20 lakh each to the dependents of the three sarpanches who were killed by the militants," Since this meeting nothing has been done. Congress is totally under pressure of Omar and NC and not interested in devolution of Power. 5. Congress always made a Statement that Panchayati Raj Act is the dream of Rajiv Gandhi but same is not implemented in J&K. 6. Recently Rahul Gandhi Visited Jammu and said “Empowering panchayats won't happen overnight,” For the last 10 Years Congress is in the power in the State as well as in Center. 7. The question of empowerment of panchayats is included in the manifestoes the Congress issued prior to the 2002 Legislative Assembly elections as also the 2008 Legislative Assembly elections. On both occasion, the Congress pledged before the masses that if voted to power, the party will empower panchayats in J&K through implementation of 73rd Amendment. Right to education denied in the name of Art 370 On the occasion of Children's Day, Congress Member of Parliament Madan Lal Sharma demanded that Right to Education (RTE) Act should also be implemented in Jammu & Kashmir. He said that if state govt can adopt PNDT, PC and many other central acts, there should not be any delay in immediate adoption of this act as it is in best interest of children of this state. Right to Education Act was passed by parliament in 2009 as fundamental right of every child between the age group of 6-14 years to get compulsory and free education. The act has to be effective in whole of the country by 31st March 2013. Under this act, the govt has to provide not only free and compulsory education to each and every child between this age group but has to arrange for other facilities such as trained teachers with a teacher student ratio of not more than 1:40, schools with class rooms and boundary wall, safe drinking water, separate toilets for boys and girl students, ramps for disabled students, playing ground, library etc. The time up to 31st March was given to state governments for making necessary arrangements under the act. This act, benefitting all the children, has been denied to the children of Jammu & Kashmir in the name of special status of the state. The children of the state are being denied of their fundamental right to free and compulsory education which other children in the country are going to enjoy after few months under the Article 370 as act has to be passed by state assembly before being effective in this state. As in the case of extending 73rd amendment of Indian constitution to the Jammu & Kashmir, the state govt is hiding itself under the plea of already having such provisions. In case of education, state has a provision of free education to all students up to 8th class but does it know that there is a vast difference between fundamental right of a child to free and compulsory education and just a provision of free and Compulsory education. When it is a fundamental right it is govt's responsibility to provide and a child can claim for its right. What state govt has done to this demand of extending RTE to the state, as in most of the cases of public concern, in the beginning of this year, state govt has constituted a committee to have a study of RTE and JK School Education Act. This committee, after examining both the acts would send its recommendations to law department on whether to adopt RTE or make necessary amendments to school education act to bring it par with central RTE act but see the seriousness of the govt this committee has not met once during the year not to speak of recommending the amendments to school education act and it is the condition when school education ministry is headed by chief minister himself. The govt has just no intention to bring in RTE in the state. The reason is simple, when it comes of any responsibility whether it may be RTE or devolution of powers to panchayats, govt runs away under the cover of 370 but these very politicians can surrender every thing if it comes with power or money from the central govt. They can adopt Sarva Siksha Abhiyan from the center as it comes with crores of rupees of aid with this scheme. They held Panchayat elections in the state because in the absence of these elections, hundreds crores of aid from the centre was blocked. After formality of these elections and release of the aid, further powers were denied to these Panchayats as it will encroach upon the powers of the present rulers. The other main reason of govt 's running away from RTE is poor condition of school education sector in the state. Majority of schools don't have basic infrastructure required for imparting quality education to the students. The CAG in his report has nailed state govt for its failure to provide basic minimum amenities to the students at primary as well as high school level. It observed that despite an increase in the number of govt schools the enrolment has decreased due to coming up of many private schools and preference being given to them by the parents and lack of infrastructure facilities is stated to be the main reason for the sharp decline in enrolment in govt schools. Out of 14,453 govt schools in state 7,903 lacks basic facilities, 3,200 schools are being run in rented houses or shops. 1,865 primary schools were upgraded as middle schools in last three years but govt forgot to upgrade their facilities accordingly. 12,000 posts, of teachers, masters, lecturers and non-teaching staff, are lying vacant in the education department. When it is the condition how this state government can dare to extend right to education as fundamental right to children of the state?