Hi guys,,,,,,,,,,
Today is the big victory for Modi government and for indians. That i am talking about ban of "Article 370 and 35A". Finally Jammu and Kashmir is with India its a great news for India. Rain is heavy this is due to the man mistake. We use lot of plastic and we are hurting nature amd cutting trees in the name of development. My request is that plant more and more trees. Trees gives most and most oxygen please don't cutting them they are our family. Let us disuss about the articles in J and K.
1st i am discuss about article 370. What is articke 370?
Article 370 of the Indian constitution is an article that gives special status to the
state of Jammu and Kashmir. The article
was drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to
recommend the articles of the Indian
constitution that should be applied to the
state or to abrogate the Article 370
altogether. After the J&K Constituent
Assembly later created the state's
constitution and dissolved itself without
recommending the abrogation of Article
370, the article was deemed to have
become a permanent feature of the Indian Constitution. This article along with Article 35(A) defined that the J&K state's residents live under a separate set of laws, including those related to citizenship, ownership of
property, and fundamental rights, as
compared to resident of other Indian
states. As a result of this provision, Indian citizens from other states cannot
purchase land or property in Jammu &
Kashmir.
On 5 August 2019, the President of India
has issued new Presidential Order
revoking the 1954 Order, and making all
the provisions of the Indian Constitution
applicable to the State. This has rendered
the Article 370 "toothless".
The home minister Amit Shah also
introduced a Bill in the Upper House of the Parliament seeking to reorganise the state with Jammu and Kashmir serving as a Union Territory and Ladakh region to be
separated as a separate union territory.
Purpose:-
The state of Jammu & Kashmir's original
accession, like all other princely states,
was on three matters: defence, foreign
affairs and communications. All the
princely states were invited to send
representatives to India's Constituent
Assembly, which was formulating a constitution for the whole of India. They
were also encouraged to set up
constituent assemblies for their own
states. Most states were unable to set up
assemblies in time, but a few states did, in particular Saurashtra Union, Travancore- Cochin and Mysore. Even though the States Department developed a model constitution for the states, in May 1949, the rulers and chief ministers of all the states met and agreed that separate constitutions for the states were not necessary. They accepted the Constitution of India as their own constitution. The states that did elect constituent assemblies suggested a few amendments which were accepted. The position of all the states (or unions of states) thus became equivalent to that of regular Indian provinces. In particular, this meant that the subjects available for legislation by the central and state governments was uniform across India. In the case of Jammu and Kashmir, the
representatives to the Constituent
Assembly[10] requested that only those
provisions of the Indian Constitution that
corresponded to the original Instrument of Accession should be applied to the State.
Accordingly, the Article 370 was
incorporated into the Indian Constitution,
which stipulated that the other articles of
the Constitution that gave powers to the
Central Government would be applied to
Jammu and Kashmir only with the
concurrence of the State's constituent
assembly. This was a "temporary
provision" in that its applicability was
intended to last till the formulation and
adoption of the State's constitution.
However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370. Thus the Article has become a permanent feature of the Indian constitution, as confirmed by
various rulings of the Supreme Court of
India and the High Court of Jammu and
Kashmir, the latest of which was in April
2018.
Autonomy of Jammu and
Kashmir: Structure and
limitations:-
India's constitution is a federal structure.
The subjects for legislation are divided
into a 'Union List', a 'State List' and a
'Concurrent List'. The Union List of ninety-
six subjects, including defence, military
and foreign affairs, major transport
systems, commercial issues like banking,
stock exchanges and taxes, are provided
for the Union government to legislate
exclusively. The State List of sixty-six
items covering prisons, agriculture, most
industries and certain taxes, are available
for States to legislate on. The Concurrent
List, on which both the Centre and States
may legislate include criminal law,
marriage, bankruptcy, trade unions,
professions and price control. In case of
conflict, the Union legislation takes
precedence. The 'residual power', to make laws on matters not specified in the
Constitution, rests with the Union. The
Union may also specify certain industries,
waterways, ports etc. to be 'national', in
which case they become Union
subjects. In the case of Jammu and Kashmir, the
'Union List' and the 'Concurrent List' were
initially curtailed to the matters ceded in
the Instrument of Accession, but they were later extended with the concurrence of the State Government. The 'residual power' continues to rest with the State rather than the Union. According to the State Autonomy Committee, ninety-four of the ninety-seven items in the Union List currently apply to Jammu and Kashmir.
The provisions of the Central Bureau of
Intelligence and Investigation and preventive detention do not apply. Of the
'Concurrent List', twenty-six of the forty-
seven items apply to Jammu and Kashmir.
The items of marriage and divorce, infants and minors, transfer of property other than agricultural land, contracts and torts, bankruptcy, trusts, courts, family planning and charities have been omitted, i.e., the State has exclusive right to legislate on those matters. The right to legislate on elections to state bodies also rests with the State.
Applicability of the Indian
law to Jammu and Kashmir:-
Acts passed by Indian Parliament have
been extended to Jammu and Kashmir
over a period of time.
All India Services Act
Negotiable Instruments Act
Border Security Force Act
Central Vigilance Commission Act
Essential Commodities Act
Haj Committee Act
Income Tax Act
The Central Goods and Services Tax Act,
2017
Integrated Goods and Services Tax Act,
2017
The Central Laws (Extension To Jammu
And Kashmir) Act, 1956
The Central Laws (Extension To Jammu
And Kashmir) Act, 1968
The non-applicability of National Human
Rights Commission (NHRC) Act by
claiming recourse to Article 370 was set
aside in 2010.
Constitution of Jammu and
Kashmir:-
WE, THE PEOPLE OF THE STATE OF
JAMMU AND KASHMIR,
having solemnly resolved, in pursuance of
the accession of this State to India which
took place on the twenty sixth day of
October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves—
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among us all;
FRATERNITY assuring the dignity of the
individual and the unity of the nation; IN OUR CONSTITUENT ASSEMBLY this
seventeenth day
of November, 1956, do HEREBY ADOPT,
ENACT AND GIVE
TO OURSELVES THIS CONSTITUTION."
—Preamble of Constitution of Jammu &
Kashmir.
Preamble and Article 3 of the Constitution of Jammu and Kashmir states that the
State of Jammu and Kashmir is and shall
be an integral part of the Union of India.
Article 5 states that the executive and
legislative power of the State extend to all matters except those with respect to
which Parliament has power to make laws
for the State under the provisions of the
Constitution of India. The constitution was adopted on 17 November 1956 and came into force on 26 January 1957 .
Implications:-
This article specifies that the State must
concur in the application of laws, except
those that pertain to Communications,
Defence, Finance, and Foreign Affairs.
The 1974 Indira-Sheikh accord between
Kashmiri politician Sheikh Abdullah and
then Prime Minister Indira Gandhi stated,
"The State of Jammu and Kashmir which
is a constituent unit of the Union of India,
shall, in its relation with the Union,
continue to be governed by Article 370 of
the Constitution of India".
In notifications issued as far back as 1927 and 1932, the state created various
categories of residents – with some being called permanent residents (PRs) with
special rights. Though the law did not
discriminate between female and male
PRs, an administrative rule was introduced to the effect that women could remain PRs only till marriage. After that they had to seek a fresh right to remain PRs. And if a woman married someone who wasn’t a J&K PR, she automatically lost her own PR status. But a 2002 high court ruling made it clear that a woman will remain a PR even after marriage to a non-PR, and enjoy all the rights of a PR. A People's Democratic Party (PDP) government, led by Mehbooba Mufti, passed a law to overturn the court judgment by introducing a bill styled “Permanent Residents (Disqualification) Bill, 2004’. This was not Mufti’s solo effort. Omar Abdullah’s party, the National Conference, backed this Bill and got it passed in the lower house of the assembly. But it did not ultimately see the light of day for various reasons Sheikh Mohammad Abdullah, the state's
Prime Minister and leader of the Muslims
in the Valley, found the inclusion of Article 370 in the 'Temporary and Transitional
Provisions' of the Constitution's Part XXI
unsettling. He wanted 'iron clad
guarantees of autonomy'. Suspecting that the state's special status might be lost,
Abdullah advocated independence from
India, causing New Delhi to dismiss his
government in 1953, and place him under
preventive detention.
In December 2016, the Supreme Court of
India set aside a judgement of the High
Court of Jammu and Kashmir which stated that Jammu and Kashmir had
"absolute sovereign power" on account of
Article 370. The Supreme Court held that
the state of Jammu and Kashmir has "no
vestige" of sovereignty outside the
Constitution of India and its own
Constitution is subordinate to the Indian
Constitution. The Court upheld the
applicability of SARFAESI Act to Jammu
and Kashmir as it was under the Union list of subjects for which the Indian
Parliament is empowered to enact laws for the whole of India, including Jammu and Kashmir.
Calls for abrogation:-
In 2014, as part of Bharatiya Janata Party
manifesto for the 2014 general election,
the party pledged to integrate the state of
Jammu and Kashmir into the Union of
India. After winning the elections,
attempts were made by the party along
with its parent organisation, the Rashtriya
Swayamsevak Sangh (RSS), for the
abrogation of Article 370. Former prince regent and Congress leader Karan Singh opined that an integral review of Article 370 was overdue and, it need to be worked on jointly with the State of Jammu and Kashmir. However, in October 2015, the High Court of Jammu and Kashmir has ruled that the
Article 370 cannot be "abrogated, repealed or even amended." It explained that the clause (3) of the Article conferred power to the State's Constituent Assembly to recommend to the President on the matter of the repeal of the Article. Since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, the Article 370 has taken on the features of a "permanent provision" despite being titled a temporary provision in the Constitution.[53][13] On 3 April 2018, the Supreme Court of India gave a similar opinion declaring that the Article 370 has acquired a permanent status. It stated that, since the State Constituent Assembly
has ceased to exist, the President of India would not be able to fulfil the mandatory
provisions required for its abrogation.[54]
In 2019, as part of Bharatiya Janata Party
manifesto for the 2019 general election,
the party again pledged to integrate the
state of Jammu and Kashmir into the
Union of India.
Presidential Order
2019 actions by the Union
government:-
On 5 August 2019. the Home Minister
Amit Shah has announced in the Rajya
Sabha (Upper House of the Indian
Parliament) that the President of India has issued a presidential order under Article 370, superceding the 1954 order. The order states that all the provisions of the Indian Constitution apply to Jammu and Kashmir. Whereas the 1954 order
specified only some articles of the Indian
constitution to apply to the State, the new
order removed all such special provisions.
This in effect means that the separate
Constitution of the Jammu and Kashmir
stands abrogated. The President has
issued the order with the "concurrence of
the Government of State of Jammu and
Kashmir", which presumably means the
Governor appointed by the Union
government. However, according to Article 370, the Governor must be advised by the Council of Ministers of the State or the Constituent Assembly of the State, neither of which is operative at the time of the presidential order.
The presidential order has also added new "interpretations" to the Article 367 of the Constitution. By the new interpretation, the phrase "[Governor of the State] acting on the advice of the Council of Ministers of the State for the time being in office" is to be understood simply as the Governor of
the State. All references to the State
Government shall mean the Governor. The reference to the "Constituent Assembly"
has also been amended to mean the
"Legislative Assembly of the State".
Resolution to Enable the Cessation of
Operation of Article 370:-
Home Minister Amit Shah has also moved a resolution to render Article 370
inoperative. The passage of this resolution enables the President to declare that the Article 370 has ceased to operate.
Change to the status of the State:-
Also on 5 August 2019 that is today, the Home Minister Amit Shah introduced a bill to convert Jammu and Kashmir to a Union Territory and to carve out the Ladakh region as a separate Union Territory. Jammu and Kashmir is proposed to have a legislature under the resolution while Ladakh will be without a legislature. By the end of the day, the bill was passed by Rajya Sabha with 125 votes in favour.
To be continued...........
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