ARTICLE 370A diplomatic attempt

Amaresh Pateljusthere4nation@gmail.com

Article 370 is amendableNo doubt that Article 370 is as contradictory as it can rise war between nations, it is also as simple as to say

Article 370 is temporary provision.

That means, it can be amended anytime if parliament has approval of president of India.

Although, there is no article in constitution of India which gives power to parliament to amend this, also, there is no article in constitution of India which prohibits parliament from amending this.

‘term – Temporary provision is itself enough to mention that this article is amendable.’

ARTICLE 370 - Temporary provisions with respect to the State of Jammu and Kashmir.

Which read as under,1. Notwithstanding anything in this constitution:(a) The provisions of Article 238 shall not apply in relation to the State of Jammu & Kashmir.(b) The power of Parliament to make laws for the said state shall be limited to(i) those matters in the Union List and the Concurrent List which in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State and(ii) Such other matters in the Said Lists as, with the concurrence of the Govt of the State, the President may, by order specify.1. Explanation. For the purposes of this Article, the Govt of the State means the person for the time being recognized by the President as Maharaja of Jammu & Kashmir acting on the advice of the council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifty day of March 1948.(c) The provisions of Article (1) and of this Article shall apply in relation to this State;(d) Such of the other provisions of this Constitution shall apply in relation to that State Subject to such exceptions and modifications as the President may by order specify;Provided that no such order which related to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (1) shall be issued except in consultation with the govt of the State.Provided further that no such order which relates to matters other than those referred to in the last proceeding proviso shall be issued except with the concurrence of the Govt of the State.(2) If the concurrence of the Govt of the State referred to in para (ii) of Sub Clause (b) of Clause (1) be given before the Constituent Assembly for the purpose of framing the Constitution of the State is concerned. It shall be placed before such Assembly for such decision as it may take thereon.(3) Notwithstanding the anything in the foregoing provisions of the 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 notify.

Historical aspect

When India and Pakistan gained their independence on 15 and 14 August 1947, respectively; J&K chose to remain independent. There was an agreement by J&K with Pakistan and India that none of them will attack J&K. While India respected the agreement and exercised restraint, Pakistan attacked Kashmir in a bid to annex it by force. On 6 October 1947, Kashmir was attacked by “Azad Kashmir Forces” supported by Pakistan. To save J&K, Maharaja Hari Singh (the then ruler of J&K) chose to accede J&K to India.

In October 1947, the accession was made by the ruler in favour of India in consideration of certain commitments made by Pt. Jawahar Lal Nehru (the then Prime Minister of India). It was in the pursuance of those commitments that Article 370 was incorporated in the Constitution.

The Ruler of Jammu and Kashmir signed the instrument of accession whereby only three subjects were surrendered by the State to the Dominion of India.

1.External affairs

2.Defense and

3.Communications

The State enjoys a greater measure of autonomy and the power of the Union of India is restricted, as regards other States.

(1) Notwithstanding anything in this Constitution,(a) the provisions of article 238 shall not apply in relation

to the State of Jammu and Kashmir;(b) the power of Parliament to make laws for the said

State shall be limited to—(i) those matters in the Union List and the Concurrent List

which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Text of Article 370

(c) the provisions of article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) 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.

Special features

Separate Constitution: J&K is the only state in India which has a Constitution of its own. The Constitution of J&K was enacted by a separate Constituent Assembly set up by the State and it came into force on 26 January 1957.

Emergency Provisions

The Union of India has no power to declare Financial Emergency under Article 360 in the state. The Union can declare emergency in the state only in case of War or External Aggression. No proclamation of emergency made on the grounds of internal disturbance or imminent danger thereof shall have effect in relation to the state unless (a) it is made at the request or with the concurrence of the government of the state; or (b) where it has not been so made, it is applied subsequently by the President to that state at the request or with the concurrence of the government of that state. In December 1964, Articles 356 and 357 were extended to the state.

Fundamental Duties, Directive Principles & Fundamental Rights

Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution are not applicable to J&K. In addition to other fundamental rights, Articles 19(1)(f) and 31(2) of the Constitution are still applicable to J&K; hence the Fundamental Right to property is still guaranteed in this state. In the Indian Constitutional history only one Fundamental Right has been added so far and that is Right to Education. this right too is not extending to J&K.

High Court of J&K

The High Court of J&K has limited powers as compared to other High Courts within India. It can’t declare any law unconstitutional. Unlike High Courts in other states, under Article 226 of the Constitution, it can’t issue writs except for enforcement of Fundamental Rights.

Official Languages

Provisions of Part XVII of the Constitution apply to J&K only insofar as they relate to (i) the official language of the Union; (ii) the official language for communication between one state and another; or between a state and the Union; and (iii) language of the proceedings in the Supreme Court.

Urdu is the official language of the state but use of English is permitted for official purposes unless the state legislature provides otherwise.

Miscellaneous

Certain special rights have been granted to the permanent residents of J&K with regard to employment under the state, acquisition of immovable property in the state, settlement in the state, and scholarship and other forms of aid as the state government may provide.

The 5th Schedule pertaining to the administration and control of Schedule Areas and Scheduled Tribes and the 6th Schedule pertaining to administration of tribal areas are not applicable to the state of J&K.

Autonomy in certain matters

Any action of the Union Legislature or Union Executive which results in alteration of the name or territories or an international treaty or agreement affecting the disposition of any part of the territory of the state requires the consent of the State Legislature or the State Executive (as the case may be) to be effective. The Union has no power to suspend the Constitution of J&K.

Procedure for Amendment of State Constitution

• The Provisions of the State Constitution (except those relating to the relationship of the state with the Union) may be amended by an Act of the Legislative Assembly of the state passed by not less than two-thirds of its membership.

• If such amendment seeks to affect Governor or Election Commission, it needs President’s assent to come into effect. No amendment of the Constitution of India shall extend to J&K unless so extended by an order of the President under Article 370(1).

Other disputed territory around the world• Hala'ib Triangle---Egypt/Sudan-Previously under joint administration;

Egypt now maintains full de facto control

• Aksai Chin--- China (PRC) India--Possibly also the ROC• Baekdu Mountain- between-North Korea/China (PRC)-Also possibly

claimed by Republic of China (Taiwan)[note 1] and South Korea.• Bhutanese enclaves in Tibet, namely Cherkip Gompa, Dho, Dungmar,

Gesur, Gezon, Itse Gompa, Khochar, Nyanri, Ringung, Sanmar, Tarchen and Zuthulphuk- between -China (PRC)/Bhutan/Possibly also the ROC.

• Boraibari –between-Bangladesh/India, ‘Boraibari falls under the adverse possession category with the map suggesting that it should be within Indian control.’

• Durand Line/Federally Administered Tribal Areas– between-Pakistan/Afghanistan. ‘Region part of Pakistan but, claimed by Afghanistan.’

• Hong Kong—between—China/Republic of China (Taiwan). ‘Then-Taiwanese President Lee Teng-hui claimed that Hong Kong should have returned to the ROC instead of the PRC because the ROC government had the original manuscript of the Treaty of Nanking. It is now controlled by the PRC.’

• Indo-Bangladesh enclaves—between—India/Bangladesh. ‘Inside the main part of Bangladesh, there are 103 Indian enclaves, while inside the main part of India, there are 71 Bangladeshi enclaves. In 1974 Bangladesh approved a proposed treaty to exchange all enclaves within each other's territories, but India never ratified it. Another agreement was announced in 2011. It requires a constitutional amendment in India for ratification.’

• Jiandao –between--China (PRC)/North Korea/South Korea. ‘Also possibly claimed by Republic of China (Taiwan).’

• Kula Kangri and mountainous areas to the west of this peak, plus the western Haa District of Bhutan—between--China (PRC)/Bhutan. ‘Possibly also the ROC.’

• South Kuril Islands (Northern Territories)—between—Russia/Japan.

• Macclesfield Bank—between--China (PRC)/Republic of China (Taiwan) Vietnam.

• Etc etc

Diplomacy behind Jammu & Kashmir

Salman HaiderFormer Foreign Secretary, Government of India

BOOK-War and Diplomacy in Kashmir ? 1947-48

•This is a revealing account of the first and most important steps in the dispute that continues to haunt us today. Questions that still nag and perplex us are looked at in a new light: why did India go to the UN, why was a ceasefire accepted, what was Nehru's role, and Mountbatten's, how did foreign intervention affect the issue, and many more. Dasgupta has written with authority on these matters, drawing on recently released material from the British archives, and bringing to the task his own wide experience of how governments function. He looks at dry official documents with unusual discernment, to show what they contain, and, just as important, what they conceal. The personalities of the time are described and their impact on events. Every comment is corroborated from the extensive records on the subject, yet this is no academic treatise: deftly written, it delves into hitherto hidden aspects of past history and vividly re-creates the drama of the time.•�•An important part of the book is what it shows about the British role in the conflict. While the two prime antagonists have been under the microscope from the start, the part played by the former imperial power has largely remained buried in the files, from where Dasgupta resurrects it. It is no secret, of course, that the armies of the two new Dominions were led by British generals and contained significant numbers of British officers. How these foreign servants of the new countries contrived to serve both their King and their employer is an intriguing tale. Their overriding concern, dictated by Whitehall and not by New Delhi or Karachi, was to avert all out war, and to this end they were prepared to ignore, or to subvert, orders they received from the authorities they served. On at least two occasions, such refusal to obey had the effect of averting full-scale war. On a number of other occasions, the two sides were pushed away from a course that threatened outright strife. Thus the third national element in the sub continent, the British, was able to manipulate the other two effectively. As the author demonstrates, beyond a point it became impossible to give effect to an independent policy without attaining national control of the armed forces.•

• Actions to avert expanded war may be defensible, but the deliberate tilt towards Pakistan that British policy came to acquire is an entirely different matter. In the initial stages, legal considerations were regarded as all-important, hence Lord Mountbatten's insistence on formal accession before troops went in to protect Kashmir. This fact also weighed heavily in Whitehall, to India?s undoubted advantage, but other factors soon drove British policy away from principle towards expediency. Pakistan?s strategic value in the Cold War and its supposed importance in the Islamic world caused British policy-makers to fear that if they came down against that country, irrespective of the rights and wrongs of the dispute, Britain?s larger interests would suffer. At this juncture Philip Noel-Baker, Commonwealth Secretary in the British Cabinet, gave his country's policy a deliberate pro-Pakistani bias from which it could not recover, even when Prime Minister Attlee was disquieted by it. Under Noel-Baker's direction, the UN process was slanted away from its original course of adjudicating on aggression, and Pakistan?s covert invasion of Kashmir was deliberately downplayed. India's concerns were largely disregarded in the cause not of justice but of British interest. What could have been a relatively straightforward matter before the UN acquired the impenetrable complexity from which it has never emerged.

• �• The events of the time, as reconstructed here, are something of a preview of issues that absorb New Delhi even

today. Pakistani support for the ?raiders?, unacknowledged but all too real, prefigured the cross border terrorism of today. It confronted Indian policy makers with the same dilemmas and challenges. Thus an attack on the raiders? bases in POK was seriously contemplated, not dissimilar to what was under consideration some months ago in response to terrorist attacks on India; then, as now, the Government of India eventually desisted. India?s frustrations on this score are ancient.

• The uniqueness of Lord Mountbatten?s position and the part he played is another of the absorbing features of those times. He was no titular Head of State in India, being at the same time the head of the Cabinet Defence Committee during a crucial period. He played a full part in that Committee where he was in close touch with the senior Ministers of the Indian Cabinet. The author shows that his influence derived not from a shadowy relationship with Nehru but from his formal and open authority within the Government. Though Pakistan remains very suspicious about his role, the author demonstrates that Mountbatten was no enemy to that country and played an honourable part in trying to keep the balance between the two contending Dominions.�

• The leading figure from the Indian side was, of course, Jawaharlal Nehru. The portrait of Nehru that emerges from Dasgupta?s narrative gives the lie to accusations of indecisiveness or softness that some recent critics have directed against him. He was a realistic and determined leader. He was not duped by the motivated advice proffered by his own military chiefs, who were British at that point, and he repeatedly pushed them into a more active war effort. Nehru was impatient to replace British officers with Indian successors, from whom he obtained useful advice even before they were formally in command. Nehru and Sardar Patel worked effectively as a team. If Nehru stopped short of expanding the war it was not for want of confidence in the outcome or belief in the rightness of India?s cause. He was aware, however, that war was a costly and uncertain option and that it was best avoided in the prevalent international situation. Even so, he refused a premature ceasefire, despite pressures, and accepted it only when the terms were satisfactory. Thereafter the matter got bogged down as power politics came to dominate the issue, to the point that Nehru was forced to lose confidence in the UN process that he had himself initThis is a diplomatic and military history that adds much to what has already been revealed about the crucial early days of the Kashmir dispute. It remains closely focused on its theme and it forces the reader to think afresh about some familiar matters. The author is throughout judicious and balanced in his tone and leads us through highly contentious and disputed issues with objective good sense and judgment. He has no polemical intent but the conclusion to which he is driven reminds us of the strength of India?s case before the UN. This well researched and highly readable book deserves the great success it has enjoyed. It is already in its seventh printing in its first year of publication, and has established a place for itself on every bookshelf of modern South Asian affairs.

STRATEGIC IMPORTANCE of jammu & kashmir

• Jammu and Kashmir was pushed into vortex of world politics and intrigue in wake of India's reference to the United Nations Security Council on December 30,1947.

• In early fifties, the USA began to involve Pakistan in its global policy of containing communist USSR and stopping the spread of communism or its influence in the South-east Asian region. Pakistan became member of military alliances sponsored by the USA and even allowed the use of its territory for establishment of military bases against communist Russia. In the process Pakistan accumulated huge stockpile of modern armament which emboldened it to launch wars against India in 1965 and 1971 to grab Jammu an d Kashmir. 

• The communist regime of China questioned in early fifties the validity of Mac-Mohan Line that was drawn by the British Government of India to demarcate the border in the north-east. They crossed this line and occupied large pats of Indian territory in 19 62. In Jammu and Kashmir the Chinese forces had occupied illegally 37,555 sq. km. In Aksaichin plateau of Ladakh without being noticed by the Indian Government. The Chinese had even constructed an all-weather road across this plateau to connect their Sinkiang province with Lassa in Tibet. The Chinese also struck in the eastern Ladakh at an important Indian out-post at Damchuk.

• The state of Jammu and Kashmir has evoked great interest of western powers particularly that of USA with the emergence of Common-wealth of Independent State(C.I.S) in place of erstwhile USSR.

• Jammu and Kashmir being surrounded by Pakistan and Afghanistan in the West, Tajikistan and China in the north and Tibet region of China in the east makes it an area of interest for all these powers. This interest has been heightened due to unresolved conflict over Jammu and Kashmir that exists between India and Pakistan.

• By constructing two strategic roads within the illegally occupied territory in the north-east in Aksaichin plateau in Ladakh and in Gilgit area in the north-west of Jammu and Kashmir, the Indian defence has been made more vulnerable by China and Pakistan .

•  The serious situation that has developed in Jammu and Kashmir poses a serious challenge to the Indian Defence strategists. It has to be decided by them how long they can afford to allow "no-war no-peace situation" to continue within Kashmir valley and on the borders and Line of Actual Control of Jammu and Kashmir state touching Pakistan. They will have to give a serious thought whether the continuance of current strategy can prove beneficial to the long-term defence requirements of the country?

• In the disarmament Conference on CTBT held at Geneva on June 20,1996, the Indian representative declared that the treaty perpetuated inequity among the nations and did not take seriously the national security concern of India arising from the existence of nuclear arms stock-pile available wit h the neighbouring countries. Accordingly India finally opposed the CTBT. Not withstanding this decision, it was not followed up by making desired budget allocations available for 1996-97. In the last seven years there has been no enhancement of these allocations in real-terms.