Constitution of India does not apply to the state of Jammu and Kashmir ipso facto, but through Art 370, which is the only link between state and India , based on alleged instruement of accession by the ruler of state with India on three subjects only i.e. DEFENCE, EXTERNAL AFFAIRS AND COMMUNICATION.
The provisions of constitution which correspond to instrument of accession are applied to the state by the president of India through an executive order with necessary exceptions and modifications in accordance with the procedure streamlined under Art 370.
First constitution ( Application to Jammu & Kashmir )Order , 1950, was issued by the president of India on 26th of january 1950 when Constitution of India was enforced through which article 1 , including state in territories of Indua , along with the provisions corresponding to instrument of accession with exceptions and modifications were enforced.
The salient features of Art 370 are that:
- It exempts the state from all the provisions of the constitution of India, except those specified in the instruement of accession;
- Other provisions relating to the instrument of accession can be extended subject to CONSULTATION of the state government;
-Provisions other than above can be extended with prior CONCURRENCE of the state government;
- It acknowledges the supremacy of the constituent Assembly of the state and only such provisions of the Indian constitution shall be deemed to be validly extended which are ratified by the constituent Assembly;
-The president’s powers to extend, including the power to amend or abrogate this article ended, after the scheme of extension was approved by the constituent Assembly and it dispersed;
-The general power of parliament of India to amend the constitution under Art 368 do not apply to Art 370 .
The constituent Assembly of state elected for framing of constitution met on 31ts oct 1951 and ceased to exist after the union laws applied to state were ratified and constitution for state was adopted in November 1956 . All union laws laws, not approved by, or extended to the state after cessation of the constituent Assembly are against Art 370, hence void .
since 1954 to 1994, the president has extended 94 out of 97 entries in the union list and 260 of the 395 Articles of the constitution.
Article 35A, overriding all other provisions of Indian constitution was adopted through constitution Application to Jammu and Kashmir order1954 and, is in fact reproduction of state subject rules in force in the state since1927, providing for protection of homogeneity and demography of the state subjects by restricting the sale purchase of land, grant of state land, scholarships and services for state subjects only. State subject is defined as person who is living in the state since the reign of Maharaja Ghulab Sing.
Similar protections are provided for ten other Indian states under Articles 371 to 371(I ) but none of them is assaulted except J & k , with malicious design to change the demography of the state to frustrate the UNCIP resolutions for plebiscite and quell the uprising for AZADI.
Instead of resolving the dispute of state under UN charter and UNCIP Resolutions, besides its obligations under Articles 51 and 253 of its constitution, Government of India is maneuvering to get the article scrapped through its supreme court, where five petitions are pending adjudication filed by NGO’S in complicity with the Government which is evident by the fact that goverment is not defending the constitution in court and no rejoinder is filed till date , although Art 370 and 35A are part of basic structure of constitution of India.
If this happens, the non state subject west pakistan refugees living in jammu , other indians living in connection with business and in central government jobs , will become residents of kashmir , state land shall be alloted to destitute indian nationals, state shall aquired land for industrial purposes to bring in the indian technicians and experts to settle there , depriving the locals of the land and jobs, seprate colonies will be built for indians in kashmir which will create Palestine like situation with its lash back on Pakistan which may lead to war between two countries , who are otherwise in a state of war on LOC and working boarder.
Given the apprehensions, the government of pakistan should launch a protest with the government of India and a diplomatic drive through out world including UN, Europeon Union, G8 countries, Neuclear powers, SAARC, OIC and all other world bodies.
About Author: Justice retired Syed Manzoor Hussain Gilani, Former chief justice AJK
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