Amendment in Article 370 is only way out to establish supremacy of Parliament in J&K

Excerpts of the speech of Prof.Bhim Singh, Chief Patron of National Panthers Party delivered on 16thMarch, 2015 at Constitution Club, New Delhi in a seminar organized by the, “We the Citizens” on Kashmir Problem and Solution.

          “Article 370 has remained a bone of discard right since its insertion in the Constitution of India in spite of serious reservation of the Chairman of the Constituent Assembly Dr. Bhimrao Ambedkar in 1949.

“Two schools of thought have been exploiting this provision to suit their political ends and the people of J&K are the principal victims of this controversy. The fact is, none, may be, intellectuals, thinkers, jurists or judges or politicians are prepared to go through the brief contents of Article 370. One school of thought is not prepared to accept its existence whereas the opposite school of thought considers it as holy and is not prepared even to discuss the subject and find its pluses and minuses.

const-2“This Article was introduced, no doubt, in the Constitution of India with a purpose to contain the authority of the then ruler of J&K, namely, Maharaja Hari Singh, living in exile in Bombay and his son Yuvraj Karan Singh was the Regent of the State. The first question that needs answer is why Monarchy in J&K was not terminated during the framing of the Indian Constitution. This is a matter of record that two states namely, Hyderabad and Junagarh never signed the Instruments of Accession with the Dominion of India in 1947 or even later. Both of them were merged into the dominion by the Constituent Assembly of India. On the other hand State of Baroda (now Vadodara) acceded to the Union of India by Maharaja Gaekwad in 1948. That state was also included in the Union of India without any reservation. It is tragedy and shows bankruptcy on the part of the Indian leadership and the intellectuals that none dared probe into this tragedy in the history of India vis-à-vis J&K. The question is important today, that why the Maharaja of J&K who was hated most by Jawaharlal Nehru and Sheikh Abdullah both was allowed to be the Monarch of the State at the time of the promulgation of the Constitution on January 26, 1950? Another question that needs to be answered by the present leadership, as the past leadership is no more there to answer these questions, that why and under what circumstances/compulsions the so-called Constituent Assembly of J&K (J&K had constituted a separate Constituent Assembly for J&K to redraft the existing Constitution framed by the Monarch in 1939) terminated/ abolished the existing Monarchy without the consent of the Parliament of India on August 20, 1952. Was that Sheikh Abdullah intended to step into the shoes of the Monarch? Was it that Sheikh Abdullah wanted the implementation of the Dixon Plan to carve out an Islamic Republic of J&K by dissecting the Muslim majority districts of Poonch (Rajouri) and Doda? The third question which is equally relevant what was the cause that let to convince Prime Minister Jawaharlal Nehru for the dismissal and arrest of his oldest and trustworthy political friend on August 9, 1953 within a year of the removal of the Monarchy?

I would like to draw the attention of the so-called defenders of Article 370 in the present form about the validity of the provisions of this Article after the Monarchy was abolished? I strongly feel that in the opinion of international jurisprudence and law the provisions of Article 370, a temporary one, became in fructuous after the termination Monarchy. Which is evident from the explanation given in clause (b), (ii) of Article 370 (1) on which made the intention of the Constituent Assembly cleared that Article 370 was meant to tame the Maharaja of J&K and keep him under control of the government he had formed on March 5, 1948 fixing Sheikh Abdullah as the head of the government (Prime Minister). This explanation is set in the following lines;

“Explanation:—For the purposes of this Article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948.” The entire explanation as reproduced above became in fructuous on August 20, 1952 with the termination of Monarchy in the state. Then with dismissal of Sheikh Abdullah as Prime Minister of J&K on August 9, 1952 brought the entire essence of Article 370 down to the grave of the history. With this Jammu and Kashmir became unquestionable part of the Indian Union which has been admitted in Section 3 of the Constitution of J&K which boldly admitted, “J&K is and shall be an integral part of India” so where is the existence of the stipulation/provisions of Article 370. This Article should have been declared dead and gone/omitted as was done in case of Article 238 of the Constitution. If the Parliament could amend Article 238 or even amend Article 31 of the Constitution of India, why not Article 370 of the Constitution. Article 31 had guaranteed property right as a fundamental right yet it was abrogated by ‘pro-capitalist Janata Party Govt. headed by Shri Morarji Desai’. What stop the Parliament to amend Article 370 which has been instigating disintegration and creating friction and threatening security of the state?

Another dangerous and unacceptable proposition in Article 370 (3) provides that;

“Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and form such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a satisfaction.

const-1This proviso has also turned in fructuous after the Constituent Assembly ceased to exist in December, 1956. The Constituent Assembly became dead the day J&K Constitution was born on January 26, 1957. The jurists and the historians have ignored this situation that emerged in the history of J&K. There is no Constituent Assembly in J&K nor even a single member is alive today. There is no provision to reorganize the Constituent Assembly after the insertion of Section 3 in the Constitution of J&K. The President is empowered to act under the scope and mandate of 370 (3) because proviso in Section 3 of this Article has gone in fructuous and non-existent.

Since a political section in the country and a particular leadership has been exploiting the people in favour of Article 370 whereas another section, political hawks, just for electoral gains have been blackmailing the provisions in Article 370. The need and necessity of the hour is to amend this Article as the Parliament is sovereign body in this regard and enjoys sovereign power to amend any provision of the Constitution. This authority in the Parliament is vested in Article 368 of the Constitution of India. What needs to be done that proviso in sub-section 3 of Article 370 should be substituted with another proviso that;

“Provided further that the Parliament shall exercise its legislative and constituent powers, which relate to matters other than those referred to in the last preceding provision listed in List-I (including matters relating to Defence, Foreign Affairs, Communication, Currency and allied matters). The matters covered under List-II & III may be dealt by the State Legislature.”

This is the amendment which is important for the security, integrity and sovereignty of Union of India. I had an occasion to discuss this matter with several Prime Ministers from Mrs. Indira Gandhi to Shri Atal Bihari Vajpayee. Shri Vajpayee did not disagree with this proposition but, what I feel that time is not in his favour. This matter should go straight to the entire nation from the floors of the Parliament that Parliament is supreme and sovereign to amend any provision in the Constitution of India. Let the entire world understand that and none shall be allowed to play with the sentiments of the people is one way or the other. The unity, integrity and sovereignty of the nation is supreme and non-negotiable.

Article 368 empowers Parliament to amend any provision in the Constitution of India. Janata government led by Shri Morarji Desai dared amend Article 31, in Chapter-III on the fundamental rights by deleting the right to property from the Chapter of the Constitution. It was Parliament of India which amended Article 35 by adding Article 35A equally dangerous provision for the security of the country. Why not amend Article 370 to empower the Parliament to legislate in respect of J&K as is the mandate to legislate in respect of other states of India. This is only way that shall establish legislative supremacy of Parliament of India in J&K also. Why not Section 3 of the Constitution of J&K clearly states that J&K is and shall be integral part of India? This shall help Parliament to respond to the wishes of all the three regions of the state, Jammu Pradesh, Kashmir Valley and Ladakh by reorganizing the state allowing all three regions to have statehood status. A kind of federation of three newly created states may be possible but neither Kashmir Valley nor Jammu Pradesh shall dominate the other reason. This shall rebuild trust and confidence in the Constitution of India. The only way to restore full democracy and peace in the state.”         

Bhim Singh

 

Amendment in Article 370 is only solution to strengthen State-Centre relationship: Bhim Singh

Jaipur (Rajasthan), March 16, 2015:  Prof.Bhim Singh, Chief Patron of JKNPP while addressing a historic conclave in Jaipur, Rajasthan organized by Rajasthan Patrika Group of Publications warned the power hungry politicians, political parties and so-called intellectuals to stop misleading the nation on the real face of Article 370. He wondered that leading jurists namely M/s. Ram Jethmalani, Kuldeep Nayar, Justice Sachar and others have been arguing through to protect the Article 370 calling it as a bridge between the Centre and the State.Prof.Singh questioned all such intellectuals whether Parliament of India has any power to amend any article or provision in the Constitution of India? Whether Article 368 empowers the Parliament to amend any provision in the State Constitution? He cited that the role of Janata Government in the Centre led by Sh. Morarji Desai removed a strong provision i.e. Right to Property from the Chapter of Fundamental Rights by amending Article 31 and the Supreme Court of India held Golak Nath case that the Parliament has every authority to amend any part of the Constitution.He reminded the blind supporters of Article 370 that it is the only a temporary provision in the Constitution of India.
Prof. Bhim Singh reminded that Article 370 was inserted in the Constitution in 1950 only to control the ruler of Jammu & Kashmir, Maharaja Hari Singh. He said Maharaja continued to be a Monarch till August 1952. After the end of Monarchy Article 370 became infructuous and redundant. Article 370 is a mother of all discrimination, anarchy, chaos and terrorism in the State.Prof. Bhim Singh apprised the country and the politicians that presently India is having only 27000 sq. miles of J&K territory when Maharaja had acceded all 84000 sq. miles of entire State’s Territory in 1947.The country’s leadership is responsible for the loss of 57000 sq. miles to Pakistan and China.Prof. Singh said that there are two aspects of the J&K problem.One is external and needs to be settled with Pakistan and China with full dignity and honour of the entire nation.Secondly, the internal aspect refers to the regional disparity,conflict and political discrimination which have arisen because of the draconian temporary provision in the Article 370.To the august gathering, he suggested on behalf the people of J&K that the solution lies in the ‘Reorganization’ of the state by carving Jammu Pradesh, Kashmir Valley State and Ladakh-Baltistan State which is possible by amending the Article 370 as the President of India is empowered to do so under the same provision.
Prof. Bhim Singh wanted to know the reason of keeping silent when Pakistan leased out 5000 sq. miles of Karakoram in 1963 to China. He wondered why Government of India kept quiet when Pakistan declared Gilgit-Baltistan comprising of 28000 sq.miles as the 6th Province of Pakistan in 2009? He maintained that the so-called ‘Azad Kashmir’ is only 4500 sq. miles of Dogra-Pahari speaking part of Jammu Pradesh.He blamed the Parliament of India for all these blunders.Prof. Bhim Singh invited all the supporters of autonomy, self-rule, Azadi and Pakistan for a debate from a common platform on the Panthers Party proposal of reorganizing the Territory of the State from Leh to Poonch and Gilgit to Lakhanpur.
Prof. Bhim Singh was also honoured by the Rajasthan Patrika in Jaipur.

Sd/-Anil Sharma