FALLOUT OF ARTICLES – 370 AND 35 A (R I P)

‘’I want to live in a country where the heads are always held high and that’s why I live in my motherland India’’The country was awake the whole night in excitement and delight of the most awaited moment which was of merging J&K into India. There was a time when people use to get afraid of staying in that state for more than a week but now the time is that even if you stay for 3 months no one will dare to touch even your fingernails. I feel really proud and confident about the wonderful decision taken by the Indian Government on the matter of J&k and Ladakh. The matter of this state not only belongs to our country rather it’s a subject of understanding the state which only breathed terrorizing trauma and fear of the most powerful persons of the state.

This Article speaks about what led to the want of separation in Kashmir and how the dominant and atrocious rulers gave birth to this feeling and enjoyed every part of it as well as it will also discuss about what was the reality and how can we eradicate this problem of separation led thought which deteriorated the development in the state from its grass root level.

This article not only tells about Constitutional aspects rather it will explain to you how a subject like LIL and ADR can play a good role in this.

Therefore, we all need to understand that our country has its crown in the shape of  JAMMU AND KASHMIR which we will never ever allow anyone to steal it from this world’s largest democratic country.

Introduction

In the cusp of the noon on 7th of August 2019 the world was freezed.

The most awaited thing of all time for what we all were eagerly waiting for, which our country sacrificed its brave sons, the mighty Article 370 is banished.

The eloquent speech by our Hon’ble Home Minister Of India Shri. Amit Shah on the 6th of August 2019 not only surprised the nation but also created waves of happiness amongst citizens of this country.

All those who were earlier part of the state, who were brutally thrown and callously treated by some demons of the land and eminent evil leaders of the land, were happy to come back to their homeland again where they can hug their mother nature with emotional hearts.

But it not might be an overwhelming episode for everyone! Still, some create havoc in paradise. Why is it happening so?  Perhaps is the biggest question for everyone. It so because Article – 370 was the bridge of Accordance of Accession, Relationships and the Hunger for Leadership.

So let us know, why the Article 370 needed to be removed completely….

 BIRTH OF ARTICLE 370

On 27 December 1947 Nehru along with Ayyangar his Secretary of IAS cadre accompanied by his dear friend Sheik Abdullah of Jammu & Kashmir signed the Accord of Accession with the then Maharaja of Jammu and Kashmir Maharaja Shri Hari Singh but it still an unknown fact to many people around the world that before joining hands to India Maharaja Hari Singh to save his state fought the first battle of URI.

And then later to save themselves or perhaps J&K from Pakistan with the fear of losing its power and status in the area it joined its hands with India on a TEMPORARY basis.

So now the final execution or the actual procedure behind this article was not known to many. the truth, here it is…. Having finalized the text of Article 370 with Sheikh Abdullah, Nehru brought in Gopalaswamy Ayyangar, IAS, as a minister without portfolio to help him deal with Kashmir portfolio and plead the case of Article 370 in the Constituent Assembly. Gopalaswamy Ayyangar had been prime minister of Kashmir for six years with Maharaja Hari Singh. When Sardar Patel expressed his misgivings, this is what Nehru had to say on Dec 27, 1947.

“Gopalaswamy Ayyangar has been specially asked to help in Kashmir matters. Both for this reason and because of his intimate knowledge and experience of Kashmir, he had to be given full latitude. 

The Sardar thereupon resigned and the matter fell in Gandhiji’s lap to bring the two colleagues together. During this period, V Shankar, IAS was the personal secretary to Patel and had maintained a record of all events. It is clear from these records that Nehru finalized the draft of Article 370 along with Sheikh Abdullah without even informing Patel.

Thereafter it fell to Gopalaswamy Ayyangar to get the draft passed in the Constituent Assembly discussions. The proposal was torn to pieces by the Constituent Assembly and also Congress Party Executive. 

Nehru, who was abroad at the time, swallowed his pride and rang up Patel and requested him to get the Article 370 approved, It speaks volumes of Patel’s loyalty and Honesty to a colleague who despite his own and others misgivings,  Managed to convince the members of  The Constituent Assembly and Congress Party Executive. But to V Shankar he said “Jawaharlal Royega”. V Shankar, in his record, has described the meeting of the Congress Executive Committee as:- “The meeting was one of the stormiest I have ever witness, barring the party meeting which discussed the proposition relating to Rajaji becoming the first President of Indian Republic. The opinion in opposition to Gopalaswamy’s formula was forcefully and even militantly expressed and the issue even brought in the sovereignty of the Constituent Assembly to draw up the Constitution without being tied down to the apron-strings of the Kashmir State Constituent Assembly. In such a situation even Maulana Azad was shouted down.

The Party was in an uproar. The Sardar had to plead that because of the international complications, a provisional approach alone could be made leaving the question of the final relationship to be worked out according to the exigencies of the situation and mutual feelings and confidence that would have been by then created. Once the Sardar had taken charge, all opposition to the draft was silenced” And how Nehru responded to this great act of loyalty on part of Sardar? On 24 July 1952, after Sardar was no more, Nehru made a detailed statement on Kashmir in the Parliament on slow integration of Kashmir into India Union and mentioned that “Sardar Patel was all the time dealing with these matters.” Even Gopalaswami Ayyangar was dismayed at this blatant lie and mentioned to V Shankar “It is an ill return to the Sardar for the magnanimity he had shown in accepting Panditji’s point of view against his better judgment.” 

The Later Journey of Articles 370 and 35 A

Article 370 of the Constitution is often considered as a link between India and the State of Jammu & Kashmir ever since the country achieved independence from the mighty British Rule.

To know about it exactly we need know what does the Article 370 says.

It says that :-

Article 370 of the Indian Constitution confers special autonomous status to Jammu & Kashmir. It is a ‘temporary provision’ under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special Provisions.” The state has different provisions than all other states, according to the Constitution.

Government and Controversy

Article 370 of the Constitution is often considered as a bridge between India and the Indian state of Jammu & Kashmir ever since the country gained independence from British Rule. But there had have been several legal claims that Article 370 is a temporary provision which grants rights to the state.

There is quite a noise over the approach of the central government on this issue of article 370. This looks to be very obvious when the article has to deal with the only Muslim majority state and the government is considered to be a Hindu right-wing party. The newly elected government is in its first month and it has already surged up controversies. The issue of abrogation of article 370 has created distress in the valley and as well as n the political scenario.

Amidst all these, the controversial statements by the newly appointed ministers have launched a series of confrontations between veteran leaders. Not only this, but the issue of article 370 has questioned the government’s motives and timing of the controversy. Ever since the political manifesto of  Bharatiya Janata Party manifesto for the 2014 general election was released, the contentious issue, the party pledged to integrate the state of Jammu and Kashmir into the Union of India.

When the party won the national election, BJP’s parent organisation, the Rashtriya Swayamsevak Sangh (RSS), called for the abrogation of Article 370. But due to some reasons, BJP didn’t take up the issue.

While the PDP and BJP formed governments in Jammu and Kashmir, there was a sharp difference between them on the issue of Article 370. While the Bharatiya Janata Party has been maintaining its stand that Article 370 should be scrapped. This sounds to be very obvious when the article has to deal with the only Muslim majority state and the government is considered to be a Hindu right-wing party.

ADR- Aternative Dispute Resolution

The United Nations has played an important role in maintaining peace and order in Jammu and Kashmir soon after the independence of India and Pakistan in 1947 when a dispute erupted between the two States on the question of Jammu and Kashmir. India took this matter to the UN Security Council, which passed resolution 39 (1948) and established the United Nations Commission for India and Pakistan (UNCIP) to investigate the issues and mediate between the two countries. Following the cease-fire of hostilities, it also established the United Nations Military Observer Group for India and Pakistan (UNMOGIP) to monitor the cease-fire line.

The Security Council Resolution 47 (1948) also enlarged the membership of the UNCIP to 5 members. India and Pakistan signed the Karachi Agreement in March 1951 and established a ceasefire line to be supervised by observers. After the termination of the UNCIP, the Security Council passed Resolution 91 (1951) and established a United Nations Military Observer Group in India and Pakistan (UNMOGIP) to observe and report violations of the ceasefire.

After the Indo-Pakistani War of 1971, the two countries signed the Simla Agreement in 1972 to define the Line of Control in Kashmir. India and Pakistan disagree on UNMOGIP’s mandate in Kashmir because India argued that the mandate of UNMOGIP has lapsed after the Simla agreement because it was specifically established to observe ceasefire according to the Karachi Agreement.

However, The Secretary-General of the United Nations maintained that the UNMOGIP should continue to function because no resolution has been passed to terminate it. India has partially restricted the activities of the unarmed 45 UN observers on the Indian side of the Line of Control on the grounds that its mandate has lapsed

Labour reforms: Jammu and Kashmir makes a good beginning

Budget 2018: Provisions of the proposed J&K Employment Code are not in the public domain. Indeed, the Budget speech suggests it is still a work in progress. But there are some clear principles that should drive any such initiative.

Budget 2018: There will be a Uniform Employment Code applicable to all labor, except domestic workers and agricultural labour. (PTI)

Budget 2018: Jammu & Kashmir (J&K) is notching up several firsts. Abolition of the Plan versus non-Plan distinction was one. Paragraphs 212 to 214 of the J&K finance minister’s Budget speech for 2018-19 have another remarkable first. “While the whole country currently grapples with the issue of labour law reforms, I have decided that the State should take the lead and show the way to the country.” There will be a Uniform Employment Code applicable to all labour, except domestic workers and agricultural labour. With exception of mines, oilfields and Union employees, all other labour laws (trade unions, industrial and labour disputes, social security, labour welfare, pensions, workmen’s compensation) are in the Concurrent List of the Seventh Schedule. However, de facto, most of what we interpret as labour law is Union government legislation, with some State-level amendments. The seventh Schedule reflects a lot of centralisation and this increased over time.

Labour conditions vary between States, as do other factor markets. If the land is in the State list, why should labour be in the Concurrent List? There may be ILO Conventions India is a signatory to, and there may be other minimum standards that should be applicable everywhere in the country. But beyond that, since labour conditions differ between States, why should we expect uniformity?

Whenever something like labour standards crops up in international fora, we rightly argue countries are at different levels of development and factor endowments. There are countries where labour should be relatively cheap. Hence, one shouldn’t expect wages in India to be as high as those in the USA. By the same logic, even if one accepts a concept of minimum wages, that minimum can’t be the same in every State. That’s like saying circle rates should be identical everywhere. Ideally, labour should be on the State List. But no Seventh Schedule amendment can occur fast. Nevertheless, if J&K wishes to reform its labour laws and replace them with a Uniform Employment Code, it can use provisions of Article 254(2) of the Constitution to do so.

Conclusion

At last, to conclude, I would only like to say that, there has been a concerted and rigorous effort on both sides of the argument which surrounds Article 370 along with 35 A. While one section of the people believes that Article 370 is the only constitutional link between the state and the rest of India, there are many who insist that Article 370 has, in fact, is a stumbling block that continues to prevent it from becoming an integral part of India. Though legal and constitutional factors are still burning, ever since the creation of India, the true sufferers are the people of Jammu & Kashmir and Ladakh as well.

This step taken by the government may seem to some as unruly and betrayal for some but actually, it is really going to help people in the valley through generating income which will lead to development thereon.

I won’t say that the people of Kashmir are absolutely ok with the decision taken by the government and neither I say that the old problems will be easily overcome. In the first instance itself nothing becomes perfect. It will take quite some time to understand and to go with the flow but it will only happen with togetherness for which we all need to join our hand irrespective of the fact, that we all belong to distinct categories. Thereupon laying the stepping stones of oneness within us. On this I would like to quote that; ‘’ The life becomes happier when it changes from I to WE’’.

References

http://www.indiandefencereview.com/news/article-370-the-untold-story/

https://www.savukkuonline.com/6601/

https://www.india.com/loudspeaker/article-370-why-should-a-state-of-indian-union-have-a-special-status-65999/

http://www.indiandefencereview.com/news/article-370-the-untold-story/

https://www.vifindia.org/sites/default/files/Amb%20R.%20Rajagopalan.pdf

https://ajkhrc.blogspot.com/#!

https://en.wikipedia.org/wiki/UNMOGIPBottom   of Form

https://en.wikipedia.org/wiki/UN_mediation_of_the_Kashmir_dispute

https://en.wikipedia.org/wiki/United_Nations_Military_Observer_Group_in_India_and_Pakistan

https://www.financialexpress.com/budget/labour-reforms-jammu-and-kashmir-makes-a-good-beginning/1057117/

https://indianexpress.com/article/opinion/columns/j-k-shows-the-way-5055339/

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