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| A look through the mist - Indian Constitution and the State of J&K | | Delhi has given “separate constitution “ to J&K | 
By Daya Sagar
Indian Constitution and the J&K State have often remained subject for discussions and debates. But in 2011 so particularly this subject comes in fore when and where ever J&K is referred. Some people name article 370 as the root cause of controversy; some believe that now Article 370 does not have much importance since it is via this article that many provisions of Indian Constitution , many laws/ Acts if Indian Parliament, some restrictive provisions of J&K Constitution have the Constitution of J&K very much in conformity with Constitution of India.; it is even opined that debates on article 370 should now end..
But this day it is also a bitter reality that the Constitutional relationship of J&K with India has surely provided enough of working material/ tools to those who are against India/ who raise constitutional questions on J&K and Delhi has been finding it hard to address the quarries effectively. Rather it appears that Delhi has not taken the issues that truthfully over last 60 Yrs, not even after 1990.
With the times passing, the number of those questioning Indian intentions has grown. Doubts in the minds of common man have too grown and this has surely helped the SEPARATISTS can not be denied.
Even some J&K leadership that do hold fast to 1947 Accession of J&K with India rigidly believing that J&K should retain her own Constitution and own Flag accuse Bharat of unduly extending some provisions of the Indian Constitution to J&K over the years are demanding that all such laws that have been extended to J&K before 1957 or there after must be reversed. Many amongst these people are those who have remained part of governments in J&K and they / their parties/ their elders have consented constitutionally / under provisions of Art 370 in and outside J&K legislature for extension / adoption of the articles / Acts / provisions that being now dragged into controversies..No doubt these people have been describing / still describe J&K as an inseparable unit of India . It can not be overlooked that the way some of these people have been accusing India of eroding the autonomy of J&K as well as breaching the upon the trust that the “Kshmiri” had rested on India which has gone to the advantage of those who question the trueness of the October 1947 Accession of J&K with India as well as those who work on the instance of foreign powers / elements to disturb the peace in India. The natives of Kashmir valley / Kashmiri Hindu ( mostly Brahmins/ Pandits) are away from their homes for more than 20 years, GOI is constructing pucca ( permanent) flats / houses for them outside valley, plans for their return to Valley appear to have been buried under the pressures of those who challenge the claims of Delhi that Kashmir is India. Had it not been so then Omar Farooq / S.A.Geelani / Sajaads / Y. Malik would not have been so particularly drawing the first attentions of Delhi inspite of their so plainly challenging the 1947 accession and rejecting the offers for talks from the power seats ( expressing so boldly / freely anti India views in Seminars / rallies / press conferences even outside Kashmir Valley).
There was time when the anti India elements could be disposed of simply on technicalities. But since in the earlier times the Delhi leaders and the people of other Indian states did not that seriously care for J&K affairs , so now it is not possible to clear the questions/. doubts in the minds of common man ( particularly Kashmir valley ) simply by addressing the technicalities and logics. GOI and Indian political leaders shall have to now come out of the political gamesmanship and look at the J&K affairs rising above party politics for finding solutions / answers to the controversies. The facts and truths about the intentions of Delhi shall have to be carried to the common man socio politically to undo the stories / logic/ reasons that the separatists have used over the years ( even the concepts that have been cultivated by some “ Indians” who believe that Kashmir ( J&K) is different than other Indian States).
It is a common man belief Jammu Kashmir State has a separate Constitution. But it can not be over looked that the “ Separate” Constitution under reference has been given to J&K by Constitution of India.
It can be also said that the way in Indian Constitution ( 1950) for other Indian States under Article 246 of Constitution subjects / issues were classified as those in UNION list, Concurrent list and Sate list , it could be said for explanation sake that for J&K State different State and union lists were drawn out in the shape of Article 370 and looking in to the intricacies of the issues the procedures / guidelines laid for drafting in the shape of a document so that those who hold the reins of governance in times to come are checked from going astray. And this document was given the name of “ Constitution”.I am saying so for a common man explanation ( any how any one could contest this explanation since the term Constitution has been used ).There is no Sate List for Jammu Kashmir this day since formally also the President has under Article 370 ordered in September 1963 any such provision for J&K..
This can also not be denied that the provisions of Article 370 / J&K Constitution were made by the “ senior” / elder ” leaders of Independent India and by the people of J&K on their own. So it shall be totally unfair to accuse only the people of J&K ( Kashmir Valley) for creation / holding to such like provisions. Rather the people who made such provisions and made some disputable / controversial commitments in 1947/ 1950s should have been questioned or their “HEIRs” need be asked to accept the responsibility. It will not be fair to simply question and reject those for whom such provisions have been laid and if the beneficiaries still want to hold fast to the Article 370 / Special provisions / Constitution they can not be forced to shed their special rights, rather they shall have to be socio politically convinced for coming out of the arena of special provisions . They will have to be convincingly told about the bads, if any, of such provisions in case it has to be done democratically.
The same way subjects of “ dual citizenship”/ restricted employment in government service / restriction on raising physical assets in J&K need be handled with cool mind. Even before the Constitution of J&K was written the first Prime Minister of India Jawahar Lal Nehru had drawn out an agreement with Sheikh Abdullah ( in the name of JK Constituent Assembly) in 1952 some parts of which became the spirit of some Sections of Jammu Kashmir Constitution like the PRC (Jammu Kashmir State Subject, Jammu Kashmir State Flag, Sadar e Riasat etc ). But the people of other Indian States ( except JS / SS/ BJP) never question their leaders for such provisions , where as there was more a need for them to question.
Article 35 A ( 1954) was incorporated in the Indian Contitution through a Constitutional amendment even much before the Constitution of J&K came into existence ( 1956). It is under the provisions of Article 35A that the J&K Assembly can incorporate provisions that could discriminate the people of other Indian States without attracting any provisions of Indian Constitution prohibiting discrimination amongst Indian Citizens. Sections Section- 8 and Section-9 of J&K Constitution could be quoted in this reference.
The same way the Constitution (Application to Jammu and Kashmir )Presidential order of 14 May 1954 too need be looked at and what has been said in that too could be seen as foundation bricks for J&K Constitution. So some one could say that why should any Hindustani /Indian who is the SUBJECT of J&K fore go any special rights that the Indian Constitutions extends to him ? May be in case the people who are not for retention of Article 370 / J&K separate Constitution too attend to these aspects seriously succeed in motivating those Indians in J&K who are not ready to shed their special provision.. Some success may be achieved in even silencing those who have been / are promoting /cultivating the separatists ideologies in the name of separate Flag and Constitution.
(Daya Sagar is a Sr columnist on Kashmir affairs and a social activist)
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(Opinions expressed in writeups/articles/Letters are the sole responsibility of the authors and they may not represent the Scoop News)
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