Bhim Singh urges President Shri Ram Nath Kovind for his urgent intervention to delete Proviso (3) in Art. 370

“I am taking this liberty urging the Hon’ble President of India for his urgent intervention to ensure amendment in Clause-3 of Article 370 which says 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 from 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 notification.”     

  1. It is submitted that President of India in his intervention made several changes in the character/language of Article 370 and that were implemented.
  2. That the President of India intervene in 1954 and amended Article 35 of the Indian Constitution which is the last para in Chapter-III of the Indian Constitution deals with the Chapter on Fundamental Rights.

I).      It was the pleasure of the President of India, Hon’ble Dr. Rajendra Prasad who inserted an amendment in Article 35 by inserting Clause 35A which reads,

                   “Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,

a).      defining the classes of persons who are, or shall b permanent residents of the State of Jammu and Kashmir; or

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

  1. 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 consistent with or takes away or abridges any rights conferred on the other citizens on India by any provisions of this part.

  1. That this amendment made by the President was sponsored by the then Union Govt. of India although this recommendation was totally against the concept and the constitutional power vested in the President of India. The President of India was vested power only to interfere into the domain of Article 370 and not with the domain of any area within the meaning and scope of Chapter-III of the Indian Constitution dealing with the Fundamental Rights of the citizens of India. Article 35 could not have been interfered with by the President of India who could have interfered only with Article 370 which was a temporary provision. (This Article 370 is still a temporary provision in the Constitution of India).
  2. This is important that President of India is vested with absolute power to interfere into the domain of Article 370 which has been a temporary phase for 70 years. President of India made several changes in the body language of this Article. ‘Maharaja’ was replaced by the ‘Sadar-e-Riyasat’ and later in 1964 Sadar-e-Riyasat was replaced by Governor. This was the domain of the Presidential Power vested under Article 370.
  3. Hon’ble President of India is urged to withdraw Article 35(A) from Chapter-III of the Indian Constitution which was wrongly inserted into Chapter-III of the Indian Constitution and which is no more relevant under the given circumstances. The President is the only authority to withdraw 35(A) because this 35(A) was inserted by the President without the support or sanction of the Parliament of India which alone enjoys power to amend any provision of the Constitution of India. Article 35 is not in the domain of Article 370.
  4. This is submitted that proviso, is temporary as Article 370 in its Clause (3) as produced above has lost its relevance for many reasons after its insertion in the Constitution of India in 1950. After 70 years, temporary provision has lost its meaning and legal sanctity. Besides, proviso provided in 370 (3) has become redundant and has no legal meaning left at all in Article 370. This proviso has become dead and should be declared so by the President of India who is the controller over the temporary Article (370). The President of India has an exclusive power vested in him by the Constituent Assembly who was supposed to take clearance from the Constituent Assembly of J&K (which itself was undemocratic and unconstitutional measure. The so-called Constituent Assembly of J&K came to an end when J&K Constitution was promulgated in J&K on 26th January, 1958. The so-called Constituent Assembly of J&K does not exist even physically speaking. The proviso inserted in Clause 3 of Article 370 became dead and redundant, the day Constitution of J&K was promulgated. Therefore, Article 370 which had empowered the Ruler of J&K, the Maharaja and which had inserted a proviso under Clause 3 of Article 370—All have been changed and amended.
  5. It is in this background and constitutional development in the history relating to the constitutional relationship between J&K and the rest of the country; that the President of India is urged, in interest of the sovereignty of the Nation and in the interest of the civil and fundamental rights of all the citizens of India including those who have been identified as Permanent Residents in the State of J&K. The Hon’ble President enjoys sovereignty over the territory of the Union of India which includes J&K as well.

This is small submission before Your Excellency, who has been a noted Advocate in the Supreme Court of India where I am practicing as a Sr. Advocate & at present, am, Sr. Executive Member of the Supreme Court Bar Association that intervention by Your Excellency in the Affairs of J&K under Article 370(3) can ensure Fundamental Rights to the Permanent Residents (Citizens of India) and ensure equity, justice and full freedom guaranteed in Article 19 of the Constitution of India. The residents of J&K are the citizens of India and deserve the benefit of all Fundamental Rights provided in the Constitution of India in its Chapter-III so that they shall not be subjected to the draconian laws made by J&K like Public Safety Act and others. Indian Penal Code need to be implemented so that Indian citizens in J&K shall also share the fruits of all Fundamental Rights with their brethren in India.

I urge Your Excellency to issue a declaration that all Fundamental Rights enshrined in the Constitution of India shall be guaranteed to the Permanent Residents of J&K being citizens of India and proviso in Clause 3 of Article 370 has become redundant after death of the Constituent Assembly in J&K. The Parliament of India is empowered to legislate in respect of the Subjects which were included in the Instrument of Accession signed by Maharaja Hari Singh on 26th October, 1947. This is the only way to save the people from further death and destruction caused by the enemies of peace and humanity.

With warm regards and assurances that National Integration and peace shall be our lasting commitment.”

 

Sd/-Bhim Singh