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STATE OF JAMMU KASHMIR: A BIGEST “APVAAD” OF LAW AND THE STORY BEHIND IT

 

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Manishek Kumar Singh, B.A. LL.B., Lucknow University

INTRODUCTION

Jammu Kashmir a northern most state of India majorly but partly, China and Pakistan both have occupied some areas of it and that’s why it became one of the most reasons of the present situation (internal disturbance) of the State.

Jammu Kashmir was one of the princely states during British empire in India. The state was created in 1846 after the First Anglo- Sikh War as per the Treaty of Amritsar.

HISTORY

  • At the time of Independence Maharaja Hari Singh was the ruler of the state. He got the kingship Hereditary from his ancestors.
  • On 26th of October 1947 Azad Kashmir Forces with the help of Pakistan attacked on Jammu Kashmir in order to protect the state Raja Hari Singh came into an agreement with Government of India. In the agreement Raja Hari Singh approved the accession of Indian Dominion on Jammu And Kashmir.
  • By the accession similar to that executed dominion of India acquired jurisdiction over the state with respect to the subjects of Defence, external affairs and communication.

 POSITION OF STATE ACCORDING TO INDIAN CONSTITUTION

Basically out of 29 states and 7 union territories Jammu and Kashmir is the only state which have its own constitution and that constitution is lexi loci for their state. As per their own constitution I don’t know what Jammu and Kashmir is but according to the Indian Constitution the state acquired a very rare or one can say special status. The only reason behind my thoughts are very simple as I know that if Indian Constituent Assembly doesn’t agreed to provide the Article 370 at that time  then there will no case of special privilege to the state and if there was no special status than as a result they don’t have their own constitution. There are also some points which help you to understand by thoughts.

  • With the formation of Indian Constitution in 1949 Government of India showed there dual character. The act of accession was unequivocally given legal affect by declaring J&K a part of the territory of India (Article 1). In which it was named as the 15th states of India.
  • On the other hand giving special priority with article 370 which is based on the tentative basis, subject to eventual approval of the constituent assembly of the state.
  • It was also mentioned that the application of the other articles was to be determined by the President in consultation with the Government of the State (article 370).
  • It was also made clear by the constitution of India that any change regarding Article 370 can only lie with the hands of Constituent assembly that is to be enforced by the President recommendation.
  • Therefore after studying the relevant facts a person can easily understand how the Government of India played a dual character game with India and Jammu and Kashmir.

    CONSTITUTION ORDER 1950
  • In year 1950 President made the Constitution order 1950, in which the Jurisdiction and interference of Union Government was decided with the state. According to the order government of India is only competent to make laws for J&K relating to three subjects Defense, External Affairs and Communication.

DELHI AGREEMENT

  • This was an agreement held between the Government of India and Government of J&K in June 1952. In this agreement the constituent assembly of J&K ratified the accessible to India regarding Jurisdiction.
  • By the order 1954, President implemented Delhi agreement as ratified by the constituent assembly. Order came to force on 14th May 1954.

 MAKING OF THE STATE CONSTITUTION

  • With the object in view the people of the state elected a sovereign constituent assembly which met for the first time on October 31, 1951. In order to form government Shaikh Abdulla was called who is the President of All Jammu & Kashmir National Conference.
  • Interim government was formed which further changed into a full-fledged cabinet with Shaikh Abdulla as the Prime Minister. Due to the failure of First interim government Raja hari Singh son was later elected by the constituent Assembly.
  • On 31st October 1951 his son Yuvraaj Karan Singh was selected as Sadar-i-Riyasat. After which on 26 Jan 1957 Constitution of J&K came into existence.

 INDIRA-ABDULLAH AGREEMENT

  • The pro-Pakistani elements in J&K continued their agitation for thr separate Constitution of the State and the GOI policy regarding it. Sheikh Abdullah got engaged in Anti- Indian movement as a result he was detained under Prevention and Detention act in 1955 to 1964.
  • After coming out of the detention period he again indulged himself in anti-nationalist movement as a result he was again detained for 6 years from 1965 to 1971.
  • Seeing the Hue and cue everywhere GOI and the Plebiscite Front came into an agreement in which it was decided that Abdullah and his supporter withdraw the movement and GOI will give J&K special status for all time. At this point Indian Government played cleverly by giving the state “Temporary” status within the constitution of India on 24 Feb 1975.

 PROCEDURE FOR AMENDMENT

  • Government of India can never make any amendment until consulted by the state legislature and passed by it by 2/3rd
  • Government of India gave J&K a special status only as a temporary measure, and that is why Article 370 was included in Part XXI under the label-“temporary transitional and special provisions”.
  • By making amendment with the part XXI of Constitution of India can change the special status and as the constituent assembly doesn’t lies in present therefore president can change the Article 370 by making public notification.

 WHAT SHOULD BE DONE AT PRESENT

At present the state is dealing with great internal disturbance and there are several reasons for it like there is situation of Unemployment in the state at its peak as a result ill minded groups and people easily provoke them towards themselves. There is misery conditions people were facing problem regarding poverty, Hunger and at most by Terrorism. Our neighbor are one of the biggest behind it specially Pakistan who use to motivate the Younger generation of the state towards terrorism.

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