The unending Indian claims and celebrations about the “surgical strike” Sept 28 across the Line of Control in Jammu & Kashmir and the Pakistani refutations that any such intrusion happened across what they call the “working boundary” are transiting from the tiresome to the comic. That the Modi government chose to make the punitive response to the Uri attack by PoK-staged terrorists such a big deal suggests two things: One that the Indian Army and military generally have such a low bar for achievement and are so starved of any operational success that even the smallest, meanest, actions are blown out of proportion as full-scale victories in major war. Sure enough, between the Indian cross-LoC op described as a “befitting” response, and Pakistanis, including General Raheel Sharif promising a “befitting” reply to any further Indian intrusions, the exchange has settled into a verbal fusillade from both sides of “befitting” responses.
It only proves the point I have long made in my writings that India-Pakistan military encounters are unserious kerfuffles. Neither side can really generate either the popular enthusiasm or the effort for a real war! Indians and Pakistanis, cut from the same cloth, are too much into each other, too much part of each other, to credibly sustain enmity of the hard kind, notwithstanding the mullahcracy on that side and the Hindutva-wadis on this side. Whence India-Pak “wars” are dismissed by most major countries as periodic eruptions of little consequence, like seasonal boils on skin. Except, with Pakistanis time and again bringing up the threat of use of tactical nukes, these encounters are now jokes with an edge.
But, how credible is the prospect of Pakistani initiation of nuclear weapons use when the outcome for that country is sure and certain extinction? So, N-use is practiced nonsense Islamabad purveys only because it finds that the Indian government, which is never able to hold its nerve in a crisis (attacks on Parliament, Mumbai, etc), is easily rattled at the slightest mention of Nukes. So why shouldn’t the Pakistanis brandish this “Allah ki dain”?
But let’s get back to getting real, and the usual Ind-Pak contretemps.
True, the prime minister advised his colleagues and fellow BJP-partymen to stop their chest-thumping. But he did so more than a week after the event, by when a hysterical media, TV in particular, had gone bonkers, with hyperbolic patriotism. Who can stop the Times Now 9PM anchor from screeching and screaming his head off and trying desperately to induce a heart-attack or a blood clot in himself? (Had the novel experience of sitting mute in one edition of this program after an initial innocuous interjection as all the invitees were imitating the anchor in out-shouting each other.) The mystery about why Pakistanis, some of them reputable, subject themselves to insulting behaviour of Indian TV comperes was, however, clarified to me. The Pakistanis are paid US$1,000 for each appearance. That is a cool 80,000 Pakistani rupees for agreeing to become targets for ten minutes of harangue. Two appearances a month will heftily increase the monthly income. Pakistanis being nobody’s fools, more and more of them want to be seen on Indian TV, as a means of bolstering their hard currency earnings, and burnishing their own nationalist credentials by trying to act more outrageous than the anchor. So much for Indians and Pakistanis engaging in public debate.
What apparently has hurt Islamabad to the quick was the CNN-associated Indian channel playing an obviously Indian Intel-given tape of conversation picked up between a Special Branch “SP” in PoK and “IG, (Pak) Punjab” about Pakistani fatalities from Indian SF action, adduced as evidence of the Indian action. The Pak Foreign Office spokesperson was livid, and reprimanded “the world renowned” CNN for indulging in an “unethical and fraudulent act” of disseminating disinformation, and threatened “necessary legal action”. (See http://tribune.com.pk/story/1194920/india-spreading-litany-falsehoods-coas/.) This can only happen on the subcontinent where the trivial is routinely exalted into the tremendous (to use a pet Trumpianism).
This raises the question: Why are GOI and Indian military so keen to prove the veracity of the Special Forces action when there’s very little riding on it? Had the “surgical strike” been a meaningful one deep (30-50 kms) inside PoK, and had there really been fireworks in terms of meaningful damage to the Pak army terrorist support infrastructure, there would have been reason to crow that terrorist outrages in the future would involve progressively higher cost for the Pakistan military. Such action did not take place, which makes it hard for the Modi regime to play up the Sept 28 op as other than a declaration of intention that hereafter cross-LoC retributive actions will be the norm.
Except, Pakistan answered with the strike on Baramulla, with the attackers getting away scott-free — melting away into the drakness, and there was no “befitting response” this time. So, may be what the Uri episode has actually done is lay the benchmark measured by the scale of military deaths as trigger for Indian retaliation. That’s a start because asymmetric warfare cannot be cost-free to Pakistan. The cost threshold to the Pak Army, however, needs to be raised manifold for it to prove a deterrent to GHQR (General Headquarters, Rawalpindi).
Security Wise 
While most of your comments are true reflection of current situation, there is one which you may like to rethink. And that about the threshold of successes of the Army being low. The Government decided to go public on this issue therefore the MEA spokesperson too was at the first briefing along with DGMO. In the past number of episodes have taken place but unannounced. What needs pondering is should the government have gone public?
Admiral Sinha @ — good to have you in the discussion. The reason, perhaps, GOI/MOD/Army didn’t go public on the earlier occasions when punitive strikes went across was because, as I have argued, these were essentially tactical actions left to the front line commanders to plan and prosecute. But once the same type of action is suddenly labeled a “surgical strike” of strategic import then one can’t but conclude that a very low threshold of success has been established. Has GOI’s going public this time around made any REAL difference? If not, then why the brouhaha? If in the affirmative, then, yes, GOI/MOD/Army should have gone to town with the manifest “success” attending on the earlier cross-LoC ops, as well.
Made for hilarious Sunday morning read. Yatharth, sach mein kalpana sey bhi jyada vichitra hota hai.
But I would counter your view that “had there really been fireworks in terms of meaningful damage to the Pak army terrorist support infrastructure, there would have been reason to crow that terrorist outrages in the future would involve progressively higher cost for the Pakistan military”
Actually Modi ji has just discovered a meaningful way to counter all terrorist acts of Pakistan.
Henceforth we don’t need to show any proof for any action and take this simple 5 step SOP:
1) Declare that X number of terrorists were killed in hot pursuit Y kilometers inside Pakistan
2) Tell americans that since we have not really attacked (much less hold territory), so they must play along this charade. Russians, Chinese, EU and UN would be more than willing to play along just for a good laugh.
3) Ask Rahul to become useful for the country and shoot off some more of his innate wisdom to add reality to it all.
4) Ask TV esp. Sanghi channels to pay some more 1000 USD packets to some more random Pakis to come and become the voles in this game of ‘hit the vole’.
5) Incriminate Pakistan by planting some admission/crosstalk/grapevine video, of Doordarshan actors or audio of Akashvani voice over artists appropriately supported by Bollywood make up and foley artists.
Jai ho! Modi ji ki. 😀
Except that you can’t get a professional army to make false claims like this. ….
I am still convinced that this strike was significant. It’s gains should not be fittered away by going back to business as usual and peace talks.
A message needs to be sent to China too. Agni 5 needs too be inducted. Anti dumping duties imposed and imports cut back.
Bhai sahab I did make the post in half jest but that also implies that I can, at least in the rational half of me, be serious about it.
Look at it like this. If Doval declares to his paki-counterpart that:
1) India will win all Media+Diplomatic wars after such attacks.
2) 5 out of 5 Paki attacks will be automatically retaliated by hot pursuits or precision strikes.
3) Only 1 out of 5 Paki attacks will see a Vyapak/Comprehensive retaliation by India like the September 28 ones. But which 1 of the 5 is left to chance, entirely.
In such a case would the Pakis be forced to expend resources on protecting what the Pakis currently believe are expendable terrorists, on all 5 occasions? With such a tack these terrorists do not seem to be as cheap to use anymore.
OTOH our own risks go down by a factor of 5. While our responses would be automatic they still will not demand deep intrusions everytime. See the current situation is that our soldier die within their own lands – does that look any good to you? If we have to live with a foregone conclusion that our people will be killed then is it not wise to make those deaths count and respected towards a better objective.
If professional soldiers and intel operatives put their head to this problem working on a stratagem of smoke and mirrors then surely they should be able to refine it to a fine art.
Obviously our military leadership currently has no stomach for escalating – killing their Generals for our Soldiers. But smoke and mirrors is a completely different ballgame where even our supine military leadership can be expected to come on board easily.
I understand that this is not foolproof. Then drop it if it yields no results. Nobody is married to this little tactic. In fact the raids of September 28 by IA, just after the un-acknowledged raid about a week back show that Pakis cannot keep their guards up for long. Don’t you think there is an opening their for our soldiers?
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Also you will be surprised the extent of lying and hiding of truth and general incompetence of professional armies. A man’s competence is his own not that of the Army. Armies only benefit from an individual’s competence. In fact mostly this individual competence is short service commissioned away or finds its end in real battles.
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Also regarding the Post Uri Retaliation by Modi – I support it whole heartedly too. No doubts about efficacy of it or the needs for proofs. Modi may just have saved his reputation by the skin of his teeth. Uri attack was a particularly severe challenge to his leadership that Pakis and those behind Pakistan, could have thrown at him. He deserves his political harvest in this case.
Would have been great had he admitted to his failures in Modi’s LEMOA instead of trying to hide his failures by hogging the Media. But that will be for the future to judge now, which is ok with me too. That part cannot be avoided by Media hogging.
vikram singh@ — Not sure what Times Now News Hour pays Indian invitees, having never been invited before nor informed about the honorarium before hand or since. But to speculate, the sum — assuming any is forthcoming — will be around Rs 3,000-Rs 5,000 per appearance, if that. Pakistanis are infinitely better compensated, ironically, than are Indians by Indian TV programmes!
I suppose, I could have yanked off the earphones and ended my participation, as you suggest. But I didn’t, and not because I was getting rich by not doing so!
Bharat Ji, The only reason you want India to do Surgical strikes 50-60 Km inside Pak territory is because according to you it will upset Americans.It may or may not suite Indian interests in the long run.But that is of no interest to you.
But What ABOUT DE-NUCLEARIZING PAKISTAN and CUTTING IT INTO 2-3 PIECES ONCE AND FOR ALL ?
Are you in favour of a Joint Indian-American invasion to destroy Pakistan forever ?
Thank You
Veerpratap@ — If you think Washington will join with India in cutting up Pakistan into pieces, then you hugely misunderstand US geostrategics. It doesn’t serve their purposes. Or ours, for that matter, as I have elucidated in my books, ‘coz we may have several extremist, unpredictable, Islamic entities to deal with on our border rather than just one.
Bharat Sir @- Americans cannot win their War on a particular Strategy called terrorism without de-nuclearizing Pakistan.
It is better to have several extremist, upredictable Islamic entities on our border than a nuclear Pakistan. JUST BOMB THE BASTARDS !!!!
The extremist Islamic entities that you talk about will not or cannot be an existential threat to India the way a nuclear armed Pakistan is.
The real reason you do not want Pakistan to be cut into pieces has nothing to do with India’s interests at all. I cannot think of anything at all apart from Americans linking up with a willing Uzbekistan and a willing Turkmenistan through a chopped Pakistan to push Russia out of central Asia !!!!
On future of Pakistan appears to be written on the wall, that it will disintegrate. Keeping it in present state is not India’s responsibility and I wonder why you feel that the break away states will all be like Pakistan. All people of Pakistan should not be condemned to live under this negative ideology based on which Pakistan has been created.
The west my wish to but we have no such interest in letting the Islamists rule over the various moderate communities of Pakistan. Several people of Pakistan can no longer live under the Islamist Ideology(not be confused with Islamic or Muslim) and its only a matter of painful time. The longer it takes the more painful it will be.
Listen to the Q&A of this Kashmir Road Show organized by Pakistan in USA. Pakistan MNA Mushahid Hussain got an earful from the people from Gilgit, Bluchistan, Sindh etc.
Was a free Bangladesh better for people of subcontinent? Yes.
Should the genocide have been avoided? Yes.
Were the perpetrators of the genocide punished? No.
Is freeing the moderates of Pakistan from the Islamist a question of revenge for India? No
We made a compromise with the Islamist to create Pakistan. The compromise did not work as it was not meant to work it was only a stepping stone from the Islamist POV. Keeping Pakistan intact under fear of Islamist takeover is not correct because there is already an Islamist takeover. Its a question of letting some people escape this sate of affairs
@Bharat
Just read a memoriam you had written for Major General Monty Palit in 2005.Wasnt he the person who wrote that ‘India Pakistan wars are communal riots with tanks’?.One has to hand it to the General,his read of India-Pakistan ‘wars’ was spot on!
In 1947 when Muzaffarabad, as also the whole area known today as POK was there for the taking by the Indian army,Nehru rushed to the UN thereby making the Kashmir non issue into an albatross that still hangs around India’s neck.In 1965 India handed over the hard won haji pir pass to Pakistan.In 1971 Indira Gandhi handed over 90000+ Pakistani POWs(who should have been handed over to the mukti bahini and tried for war crimes for killing more than 30 million Bangladeshis,most of them Hindus) without resolving the Kashmir non issue.These same people were deployed under the same Tika Khan in Baluchistan to carry out more rape and slaughter.During the Kargil war India never crossed the LOC ,as if it was sacrosanct.Operation parakram was the biggest joke,a stand off at the border involving humongous cost, all for silly posturing.Now we have the ‘surgical strikes on some dilapidated structures just across the LOC and the same anchor you mentioned, going ballistic as if both Hafiz Saeed and Masood Azhar been taken out and Dawood Ibrahim was next in line.
If all this wasn’t so tragic it would be really funny.The kind of chicanery and skullduggery being indulged in during this war of ‘befitting replies’ has become a joke really!
Unless followed through, which is unlikely, this so called “muh tod jawab” will become a joke, except to the Bhakts.
Let Modi first, get a hold of Kashmir and dismantle the special status structure to fully integrate the state. Then we can talk of befitting replies et al.
Someone had said, let us first ensure the safety of NIT students, many of the non-kashmiri students have refused to come back this academic year after the fiasco over the flag earlier in the year.
@Shaurya
The tragedy today is none can talk about repealing article 370(biggest impediment to Kashmir’s integration with India) or atrocities heaped by the majority population in Kashmir on the minority Kashmiri pandits(making them refugees in their own land) without being labeled a Hindu fanatic,such is the sordid saga being played out.The fact that India can never be truly secular without a uniform civil code is conveniently overlooked by the so called ‘secular’ people.
You are right in recommending that this special status be revoked.No Indian citizen has the right to buy land in J and K ,but the Kashmiri can buy land anywhere in India,like any other indian citizen,talk about double standards!This needs to change, otherwise Kashmir is going to be kept simmering by Pakistan.GOI spends around ₹100 crores per year on the likes of anti national separatists like geelani and others,its pathetic to say the least,at least put a stop to this tomfoolery before talking about ‘muh tod jawab’,the low lifes like geelani and his ilk must be having a good laugh at Delhi’s expense.
See more:
http://m.greaterkashmir.com/news/kashmir/story/220097.html
Andy@ — to interject on a point you have made. Readers may be interested in knowing the reason for Nehru’s ordering the 161 Bgde under “Bogey” Sen to wheel due north towards Kargil rather than take Muzzafarabad as it was tasked to do. It was owing to the special pleading by Sheikh Abdullah. The “Lion of Kashmir” reminded Nehru that the Mirpuri Mussalmans in majority in J&K, residing in the part of Kashmir west of the Neelum River would, in a referendum, side with Pakistan and that it would be prudent, in the event, to let Pak have what is now PoK. The archival material supporting this line is in Prem Shankar Jha’s book ‘Kashmir 1947’ (OUP, 1998). Pretty convincing stuff. The trouble is Nehru didn’t reckon with an ambitious Sheikh making future political trouble.
Re. ‘Mirpuri Mussalmans’ – seems like a lot was going on during those times.
dailyexcelsior.com/the-fall-of-mirpur/
“Maharaja Hari Singh, declines to accede to the union, complacent of his power as he to cope with the prevailing violence. But within a month, his Chief of Army Staff, Major General Scott, deserts him and flies home to England via Rawalpindi. On October 6, all border-posts of Jammu and Kashmir, from Kahuta to Jhelum, come under attack…
Eating his humble pie, the Maharaja signs the accession treaty with India on October 26. Thanks to the great jumble at New Delhi, there is delay in deployment of troops. Bhimber falls to the enemy on October 29 and Rajouri on November 11. A week later, on Nomber 19, Brig Paranjpe of 50 Para Brigade arrives on the scene, but the situation has already gone out of hand. His BM (brigade-major), Nasurallah Khan, detailed to evacuate the beleaguered Gurkha troops at the June and Thirochhi Fort, butchers the unsuspecting troops to a man and defects to the enemy along with his cohorts.
The fate of Mirpur town is now sealed. Reinforcements are sent to save the day, but are mystifyingly diverted to Kotli. One version is that it was done primarily to rescue Colonel Baldev Singh of the Maharaja’s army, who was stuck there. As a consequence, the non-Muslim population of Mirpur is left to the tender mercies of the enemy. Rao Ratan Singh, Maharaja’s vizir wazarat (deputy commissioner) is among the first to leave the doomed town, escorted by a sizeable body of troops, to reach the safe havens of Jammu. Eventually, it is decided on November 25 to evacuate the town and of the 15000 persons who are forced to leave their homes and hearths, only 4000 make it to India.”
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So its not just politics of nationalist considerations where one has to decide what to hold and what to let go of. There were considerations of rats within the Independent Indian Army. Then the Independent Indian Army was not exactly a well endowed force that could be everywhere and do everything. Then there was the need to save Babus who must take precedence over ordinary junata-janardan. Then there are the foreigners who supposedly will one day help us dismember Pakistan :D. Then off course the 50:50 Hindu:Muslim forces of Maharaja Hari Singh were a headache all on their own. Then those willing to take the Red Pill, may need to check out the following and a new journey will open up for them:
1) Who was the Director of Mil Operations from India’s side during the Mirpur Massacre?
2) What was that man doing when Indira Gandhi gave him orders much much later in 1971 to march into East Pakistan?
3) By what month in 1971 had Indira Gandhi made up here mind to attack East Pakistan and what was the feedback from her generals if and when deliberated with? She had signed the Indo-Soviet Treaty on August 9, 1971. Surely the deliberations within Indian establishment were before that date.
Then you have to concede at least that Pakis were not idiots either. Their’s is a long cultural thing where victimhood and victimization are both convertible into Quwat-e-Islam. A particularly potent ideation.
Is hamam mein sab nange hain.
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@BK, one query, what is your view of Krishna Menon. The more I read of the man better he seems.
1) Stood up for Goa. Got hunted for that by US Ambassador Galbraith. No wonder Indian Right Wing hates him too.
2) When betrayed by his blind faith in Nehru &/or China, did a quick about turn and reportedly, advocated for a strategically better idea of confronting the chinese in the plains and using the IAF. Our airforce OTOH had never even bothered to train for mountain fighting till 1962 and actually played alongwith the idea that using IAF would invite counter-bombing of Kolkatta.
3) Kept his quite when he finally understood that he was politically ‘accidented’ – owning upto his personal failures.
cia.gov/library/readingroom/docs/polo-09.pdf
[By that time,
however, Indian advocates of the policy of expulsion had
become dominant in the leadership and Krishna Menon,
who had opposed the policy prior to his departure for
New York on 17 September, left wsith the premonition
that full-scale fighting would contribute to the cause
of those Indians who desired his political death.*
*(Krishna) Menon apparently was aware that he was approaching
a morass in which his political prestige would stand
or fall on the ability of Indian troops to beat Chinese
troops–a morass he had tried for months to stay clear
of because he was convinced that a major Chinese assault
would in fact wipe out advanced Indian posts and, as a
political reverberation, destroy him as the “guilty defense
minister.” Lakshmi Menon quoted him as saying in
a state of anguish in mid-September that “Now my enemies
will attack me, but I cannot reply because Nehru was
personally responsible for all decisions regarding the
NEFA and had refused to concentrate as much force there
as in Ladakh.” Such was his fury that he hit out even
at his old friend.]
For reference shooting war period was 20 October – 21 November 1962 and Menon had resigned on November 9, 1962.
Sometimes it seems the Parrikar too has simply allowed himself to become Modi’s Menon. If that really is the case then it would be interesting to see if history does repeat itself with Parrikar. All the usual players with different faces but with same personalities are still there today.
Andy@ — on Palit’s description of Ind-Pak wars as “communal riots with tanks” — have used it as an analytic template to prove that these wars indeed fit the metrics of communal riots! This may be found in all my books, but originally in a research paper published in an issue of the ‘Round Table: The Commonwealth Journal of International Affairs’ in 1996.
@Bharat
Thanks for the information.One can only wonder what might have been if Sardar Patel and not Nehru had been in charge of J&K,maybe history might have been a little different today.
@~!…..
An excerpt from Bal Raj Madhoks book ‘Kashmir -The strom center of the world’i it’s an eye opener regarding Nehru’s attitude towards the Hindu population of J&K and corroborates Bharat’s reply where he states that Muzzafrabad was not freed because Nehru heeded Sheik Abduallhs advice.Its a read that does not require any comments from me:
“Mirpur: This strategic town of a normal population of about 10 thousand which had swelled to about 25 thousand at the time of its fall was the headquarters of the Mirpur district. It lies at a distance of about 20 miles from the town and cantonment of Jehlum.
Mirpur had been cut off from Jammu after the fall of Bhimber and Kotli. It had a garrison of State troops. But it had run out of ammunition. Therefore it was feared that Mirpur may meet the same fate as Bhimber & Kotli.
It was a district headquarter and center of influential Mahajans, a fair colored Vaish community with distinct, Aryan features; many of its people hid their relatives in Jammu. They were naturally worried about their fate. They approached Praja-Parishad for moving the authorities to relieve Mirpur.
Pt. Prem Nath Dogra and myself met Brigadier Paranjpe, the Commander of Indian troops in Jammu and requested him to send reinforcement to Mirpur. He shared our anxiety but expressed his helplessness because as per instructions from above, all deployment of Indian troops in the State had to be done in consultation with Sh. Abdullah who was indifferent to the needs of Jammu.
He informed us that Pt. Nehru was visiting Jammu en- route to Srinagar on November 25, and suggested that we should approach him and request him to give proper directions to Sh. Abdullah in the matter.
I met Pt. Nehru at Satwari aerodrome and told him about the critical situation in Mirpur and requested him to order immediate reinforcement of Indian troops to the beleagured tour. I was amazed at his response. He flew into a rage and shouted: “Talk to Sheikh Sahib – talk to Sheikh Sahib. ‘ I then told him that Sheikh Sahib was indifferent to the plight of the Jammu region, and that he alone could do something to save the people of Mirpur. But all my entreaties fell on deaf ears. No reinforcement was sent to Mirpur.
Mirpur fell on the 25th of November 1947, when the enemy broke open the back gate of the walled town by heavy gunfire. The state troops and local officers then lost heart and retreated even before the town could be evacuated by the civilians. The people, therefore, began to run in terror. The fight soon became a rout and the rout a massacre. Hardly two thousand people out of about 25 thousand living at that time in the ill-fated town managed to reach Jhangar in safety. The rest were ruthlessly butchered. The number of women abducted from there ran into thousands. Most of them were paraded and then sold in the bazaars of Jehlum, Rawalpindi and Peshawar. The barbarities of the Pakistan troops and civilians on these hapless women who were kept for sometime in Alibeg camp before their dispersal to different towns put to shame the worst orgies of rape and violence associated with the hordes of Ghengiz Khan and Nadir Shah.
The loot obtained by the Pakistanis from these towns, especially from Mirpur, went into crores. The floor of every house in Mirpur was dug by raiders in search of hoarded treasures.”
A most damning indictment of Nehru’s role in J&K from the same book by Madhok:
‘The story of the war in the Jammu sector is thus a continuous tragedy occassionally relieved by episodes of glory provided by the heroes of Kotli, or the defenders of Poonch. But the most unfortunate part of it is that little is known to the people in India and outside about this side of the Kashmir story.
The sense of tragedy about happenings in Jammu area is heightened by the fact that most of this area fell in the enemy hands and massacres took place there after the State-acceded to India and the Indian troops had taken charge of the defense of the State.
Kashmir valley having been cleared of the enemy by the 8th of November, Indian troops could have conveniently turned their attention to this strategic area. They could have at least relieved the beleagured towns of Rajauri and Mirpur and prevented the worst massacre of Indian history after Timur’s massacre of Delhi in 1398 from taking place at Mirpur.
That they could not do so was not the fault of army commanders. The men responsible for these massacres were Pt. Nehru and Sh. Abdullah. Pt. Nehru would not allow anybody else in India to advise him in his handling of the Kashmir situation. He was solely guided by Sh. Abdullah, who had no interest in any other part of the State except the Kashmir valley. His critics even go to the length of charging him uith deliberate indifference toward the fate of beleagured Hindus. That may or may not be correct, but the fact remains that he refused to send troops for the relief of Mirpur even when they were not so urgently needed in the Kashmir valley.’
In fact Maharaja Hari Singh was so pained by the state of affairs that he wrote a stinging letter to Sardar Patel where he detailed the sorry situation in J&K adding that he was seriously considering withdrawal from the Instrument of accession signed with India,as Madhok writes “This letter jolted the Government of India out of its complacency in regard to the war. The Indian army thereafter devised a new strategy which turned the tide against Pakistan by the end of the year. Pakistan army were on the run all along the four hundred mile long battle front. The Indian army would have completed the job entrusted to it by clearing the whole State of the Pakistani invaders both regular and irregular, in course of time had it not been halted by the unilateral cease fire ordered by the Government of India on the first of January, 1949. This was done in pursuance of the resolution of the U.N. Security Council.
Reference of Kashmir issue to U.N. and interplay of super power politics there which gave a new and unexpected dimension and twist to Kashmir problem is even more painful and perplexing. It composed foreign policy of India and its sole architect, Pt. Nehru.”
@andy,
While we can accept Balraj Madhok’s testimony regards Mirpur and J&K since the author belonged to these parts and had first hand knowledge being a public figure. But it would be wrong to heap it on Nehru alone. Nehru, like Modi today, was the leader who said he would lead and exactly like Modi today he allowed himself to be hoodwinked and chased the foreigners around like crazy. But just like today, even at that time, and for like considerations, there were players who scuttled Nehru to his sorry state. In such cases all leaders without exception have to contend with a huge baggage to be lugged around. Moreover Kashmir-1947 was the longest hot war that independent India has ever fought with its own resources and for itself. A new army cannot be expected to be flawless in execution.
They had british officers serving alongside ex-BIA and newly recognized as native officers. Something like a Bhanumati Ka Kunba. In fact one of the field marshals later actually admitted that his native officers would come to him asking for the KCIO like privileges and pay packets. Shows what the priorities are usually for most people.
Here is a link which shows how, esp. during wartime, leaderships are made and the selected / elected leader may not be the only one active or being considered. Notice the actual marching orders did not come from Nehru, nor did the officer ordered waited for Nehru to concur.
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indiafacts.org/the-original-himalayan-blunder-how-india-lost-gilgit-baltistan/
[The Kabaili tribals were hardly 10-12 kms away from the Srinagar airfield. They came back on 25th Oct, and it is worth recalling ………..
As usual Nehru talked about the United Nations, Russia, Africa, God almighty, everybody, until Sardar Patel lost his temper. He said, ‘Jawaharlal, do you want Kashmir, or do you want to give it away’. He (Nehru) said,’ Of course, I want Kashmir (emphasis in original). Then he (Patel) said ‘Please give your orders’. And before he could say anything Sardar Patel turned to me and said, ‘You have got your orders’.
I walked out, and we started flying in troops at about 11 o’clock or 12 o’clock.]
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It would be a wrong idea to think that Nehru was there only to veto good decisions and foist bad ones. He did blunder but in life that happens. At times supposedly responsible people just hit their foot on the axe. And foreigners and their acolytes without exception are fashioned into an axe.
It is the nature of strategic community that every participant has to remain alert to the intents, capabilities and intelligence of others, whether inside or outside the team or even in the enemy team. Nehru was doing the same, just that he was a lesser man. This is not different from the situation as it is today. All people are presuming that they are working for the good of the country. But only one particular line of thought and action will in future prove to be accurate. And nobody has control over the future.
See this link below. Shows how, despite suffering from Westophilia, Nehru too was aware that he may end up being the scapegoat in the great game.
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idsa.in/system/files/book/book_AirPowerandNationalSecurity_0.pdf
[Nehru had on many occasions suspected British designs to freeze the fighting,
when Pakistan was at an advantage and argued and fought with the British senior
officers, but could not prevail against the so-called expert military advice.
C. Dasgupta cites two studies that were done by the British Indian Chiefs of
Staff Committee in Delhi, and by the British Chiefs in London in July 1946.
Both reached the same conclusion: that the discovery of oil in the Middle East
and the advent of air power had changed the strategic picture. India’s vast
continental size, its location at the head of the Indian Ocean and on the route to
East Asia, its almost ‘inexhaustible’ manpower and its rapidly growing industrial
capacity demanded a re-assessment of its geo-strategic value. This resulted in a
notable shift from the naval to the air factor. Britain was thus hoping that India
would remain an active member of the Commonwealth at least in the defence
field, and allow Britain to use its airfields for any military eventuality
.
.
.
The British Chiefs, gave multiple excuses, India running out of troops being
one of them. When the situation in Poonch became desperate, Nehru suggested
that India plan attacks on the Pakistani bases in the Sialkot sector, which were
supplying the enemy forces opposite Poonch. This suggestion was vetoed by the
British Chiefs for fear of wider escalation. The British Governor General and the
Chiefs ensured that the war between the two dominions was kept at as low a level
as possible and quickly wrapped up, with Pakistan in a distinctly advantageous
position.
The Indian Cabinet very often protested and General Robert Lockhart, the
first Army Chief, was made to resign when he disobeyed the orders of the Indian
leadership, but General Sir Francis Robert Roy Bucher who replaced him stayed
on for nearly two years, only retiring as an Officer on Special Duty in 1949, and
was largely successful in ensuring fruition of the larger British strategy.]
______________________________________________________________________
See how ‘expert military’ can shape the destiny of a nation to the disadvantage of that nation.
Today nobody loves the KCIOs but that was not the case always. Only the name of the army was changed and some cosmetic changes in reconstituting the formations and some random examples created or ‘repugnant battle honours’. No training/indoctrination, as such was carried out to kill the old culture and seed a new one. Result is there for all to see today.
That is why BK is right when he says there can be no holy cows.
So where does the buck stop? Ultimately someone has to take responsibility and in this case the person has to be Nehru.He goofed up big time in Kashmir,firstly by sidelining Patel and secondly by listening to Sheikh Abdullah.The Maharaja did his bit by signing the Instrument of Accession after that it was India’s job to defend the people of J& K.If Sardar Patel had been in charge of integrating J&K with India ,as he was for the other more than 500 pricely states, he could have been blamed for this mess, but since Nehru was a Kashmiri pandit he wanted to be incharge in this particular case and was.also the PM at the time, he cannot be absolved of taking responsibility.The final decision in all matters regarding Kashmir was his alone.Even Ambedkar flatly refused to add article 370 in the constitution,it was done solely at Nehru’s behest.No one is implying that anything was deliberately done, but this doesn’t change what transpired,India is still paying a heavy price in Kashmir.
See more:
http://m.indiatoday.in/story/article-370-issue-omar-abdullah-jammu-and-kashmir-jawaharlal-nehru/1/364053.html
@andy
Article 370(1)(a) refers to Article 238 which is a dead provision today.
Article 370(1)(b)(ii) refers to ‘Govt of the State’ (defined item) which no longer exists.
Article 370(1)(d) refers to ‘Govt of the State’ (defined item) which no longer exists.
Article 370(2) refers to ‘Constituent Assembly’ (defined item) which no longer exists.
Article 370(2) refers to ‘Constituent Assembly’ (defined item) which no longer exists.
Now that leaves only the following two provisions as live ones. Read them and decide for yourself.
__________________________________________________________________
>Article 370(1)(c) The provisions of Article (1) and of this Article shall apply in relation to this State
>Article 370(b)(i) The power of Parliament to make laws for the said state shall be limited to 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.
__________________________________________________________________
Note – Article 1 is about the sovereign geography of India.
Now read these live provisions with the following Articles from the Constitution of Jammu & Kashmir:
__________________________________________________________________
2. Definitions:-(1) In this Constitution, unless the context otherwise requires- (a) “Constitution of India” means the Constitution of India as applicable in relation to this State;
3. Relationship of the State with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part of the Union of India.
4. Territory of the State:-The territory of the State shall comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State.
5. Extent of executive and legislative power of the State:- The executive and legislative power of the State extends 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.
__________________________________________________________________
So what have you now.
Let me talk for myself now. If somebody is really worked up about “Ek Desh Mein Do Vidhan” then he must also take up the concomitant legal risks to the authority of Indian State.
And even if the single Vidhan is achieved the terrorism, the LEMOA, the debilitating imports, the fiefdom running will not stop.
So again what should be the priority.
See BK has replied in the first reply w.r.t this essay – Has GOI’s going public this time around made any REAL difference? If not, then why the brouhaha?
Same is true for Article 370. In fact with the going public you actually have achieved the lifting of the all corrupting secret veil under which every kind of nonsense used to happen. With Article 370 abrogation we don’t get anything at all.
Actually you can get rid of Article 370 by claiming that the Constituent Assembly of J&K was not properly conducted (does not cover the PoK – check article 4 of J&K constitution). This will be the same rationale which the Govt. of India gives for not agreeing to Plebiscite today.
Additionally you could also argue that the Constitution of India cannot be made to seek strength for itself from the ‘Govt of the State’ since that too is not properly constituted.
Article 370 defines ‘Govt of the State’ as “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.”
Now the Maharaja’s Proclamation dated the fifty day of March 1948, talks about ‘National Assembly’. And at this point any challenge in Supreme Court of India based on ‘basic structure doctrine’, to the abrogation of Article 370, will be hard to support. Supreme Court will be hard put to allow the misuse of Constitution to undermine the sovereignty of India by supporting another ‘National Assembly’. I would rather challenge Article 370 from ab-initio. Bad in law and natural justice to begin with. Now at this point and in exactly this matter Supreme Court has already said that it cannot ask the Parliament to make a law / amendment. Supreme Court has given only two ways out for those who seek to challenge Article 370:
1) either come up with a better challenge and through proper channel; else
2) ask the Parliament to amend the Constitution.
If Supreme Court does allow for ‘Govt of the State’ which is inalienable from the concept of ‘National Assembly’ as voiced in Maharaja’s Proclamation dated the fifty day of March 1948, still it will be hard to save the Constitution of J&K because the Constitution of J&K ends up creating a subset of India which is not of any national character as envisaged by Maharaja Hari Singh.
And if the wishes of the people are supreme in the Republic of India which from August 15, 1947 itself, already includes the whole of J&K (POK included).
But tell me something, once all this song has been sung and all this dance has been danced, tumko milega kya?
Oh I think I missed something
>Article 370(1)(c) The provisions of Article (1) and of this Article shall apply in relation to this State
>Article 370(1)(b)(i) also refers to ‘Government of the State’ which is also a defined item and does not exist today.
So essentially when Omar Abdullah claims that Article 370 is the only thing that links J&K with India he is basing his law on the Article 370(1)(c) only.
This actually is even funnier than I was imagining. 😀
Here is your link to the Proclamation of March 5, 1948:
books.google.co.in/books?id=AqR1ZU0xPQUC&pg=PA91&dq=kashmir+political+problems+bakshi%2BProclamation+dated+5th+March,+1948&hl=en&sa=X&ved=0ahUKEwjQxtrz4tDPAhUGN48KHRO3CIQQ6AEIHjAA#v=onepage&q=Proclamation%20dated%205th%20March%2C%201948&f=false
~!…@
Seemingly you just skimmed over things without going into the details of how article 370 actually impacts India and also it’s constitution.Have a look:
The state of Jammu and Kashmir is the only state in the country which has its own Constitution. It is also the only state, which had a Constituent Assembly, which drafted the constitution of the state. The Constituent Assembly of Jammu and Kashmir, was elected by the people of the state. The Constituent Assembly met for the first time on October 31, 1951.
It framed the Constitution of the state. The Draft Constitution of the Constituent Assembly for state was adopted on November, 17, 1957 and given effect from January 26, 1957.
(i) J&K has its own Constitution framed by a special Constituent Assembly set up by the State.
(ii) Parliament cannot make any law without the consent of the State Legislature relating to:
(a) Alteration of name and territories of the State.
(b) International treaty/agreement affecting the disposition of any part of the territory of the State.
(iii) The residuary power in respect of J&K rests with the State Government and not with the Union Government.
(iv) The Fifth Schedule pertaining to the administration and control of Scheduled Areas and Scheduled Tribes and the Sixth Schedule pertaining to the administration of Tribal Areas are not applicable to the State of J&K.
(v) The provisions of the Indian Constitution regarding denial of citizenship to person who migrated to Pakistan do not apply to Permanent residents of J&K who after having migrated to the territory, now included in Pakistan, return to the territory of that State or permanent return issue by or under the authority of any law made by the Legislature of that State and even such person shall be deemed to be a citizen of India.
(vi) Certain special rights have been granted to the permanent residents of the State of J&K with regard to employment under the State; acquisition of immovable property in the State; settlement of the State etc.
(vii) No proclamation of emergency made by the President under Article 352 on the ground of armed rebellion shall have effect on the State of J&K without the State Government’s concurrence.
(viii) The Union has no power to suspend the Constitution of the State on the ground of failure to comply with the direction given by the Union. In the event of the breakdown of the Constitutional machinery in the State, Governor’s Rule is to be imposed. However, in 1964, Articles 356 arid 357 was extended to that State in the event of a breakdown of Constitutional machinery to take over the administration of that State.
The Parliament was also provided the power to legislate for the State during emergency under Article 356. The first occasion when President’s Rule under Article 356 was imposed in J&K was in 1986 to follow Governor’s Rule. The Union has no power to make a proclamation of financial emergency in the State.
(ix) The provisions of Part IV relating to the Directive Principle of State Policy do not apply to J&K.
(x) No amendment of the Constitution of India can extend to J&K unless it is so extended by the order of the President under Article 370 (1).
Here it’s necessary to note point no 6, in this provision no Indian citizen other than state subject of J&K is entitled to buy any land or get state govt jobs,now is this not a breach of rights of Indian citizens ?Special status of J&K citizens is what gives rise to separatist tendencies
The plenary power of the Indian Parliament is also curbed in certain other matters, with respect to which Parliament cannot make any law without the consent of the Legislature of the State of Jammu and Kashmir, where that State is to be affected by such legislation, e.g., (i) alteration of the name of territories of the State (Art. 3). (ii) International treaty or agreement affecting the disposition of any part of the territory of the State (Art. 253).
Similar fetters have been imposed upon the executive power of the Union to safeguard the autonomy of the State of Jammu and Kashmir, a privilege which is not enjoyed by the other States of the Union, thus, (i) No Proclamation of Emergency made by the President under Art. 352 on the ground of internal disturbance shall have effect in the State of Jammu & Kashmir, without the concurrence of the Government of the State, (ii) Similarly, no decision affecting the disposition of the State can be made by the Government of India, without the consent of the Government of the State, (iii) The Union shall have no power to suspend the Constitution of the State on the ground of failure to comply with the directions given by the Union under Art. 365.
In the event of a breakdown of the constitutional machinery as provided by the State Constitution, it is the Governor who shall have the power, with the concurrence of the President, to assume to himself all or any of the functions of the Government of the State, except those of the High Court, (iv) The Union shall have no power to make a Proclamation of Financial Emergency with respect to the State of Jammu and Kashmir under Art. 360 (v) Articles 356-357 relating to suspension of constitutional machinery have been extended to J & K by the Amendment Order of 1764.
The provisions of Part IV of the Constitution of India relating to the Directive Principles of State Policy do not apply to the State of Jammu & Kashmir. The provisions of Art. 19 are subject to special restrictions for a period of 25 years. Art. 19(1) (f) and 31(2) have not been omitted, so that the fundamental right to property is still guaranteed in this State.
While the Constitution for any of the other States of the Union of India is laid down in part VI of the Constitution of India, the State of Jammu & Kashmir has its own Constitution (made by a separate Constituent Assembly and promulgated in 1957).
While an Act of Parliament is required for the amendment of any of the provisions of the Constitution of India the provisions of the State Constitution of Jammu & Kashmir (excepting those relating to the relationship of the State with the Union of India) may be amended by an Act of the Legislative Assembly of the State, passed by a majority of not less than two-thirds of its membership; but its such amendment seeks to affect the Governor or the Election Commission, it shall have no effect unless the law is reserved for the consideration of the President and receives his assent.
It is also to be noted that no amendment of the Constitution of India shall extend to Jammu & Kashmir unless it is so extended by an Order of the President under Art. 370(1).
No alteration of the area of boundaries of this State can be made by Parliament without the consent of the Legislature of the State of J & K.
By amendments of the Constitution Order, the jurisdictions of the comptroller and Auditor-General, of the Election Commission, and the Special Leave Jurisdiction of the Supreme Court have been extended to the State of Jammu and Kashmir.
Therefore its necessary to get rid of article 370,the feeling of exclusivity it grant’s people of J&K is what stops their complete integration into the Indian union.I’ve myself heard Kashmiris say ‘hum to India dekhne aaye hain’ as if they are foreigners.Until and unless this special provision is done away with separatist tendencies will always exist.So when all this song and dance gets over by revoking article 370′ humko bahot kuch milega.’
Oh,BTW do you still feel Nehru is not to be blamed for the colossal mess created in Jammu and Kashmir?I take it that you concur with my views on Nehru being the root cause of India’s Kashmir dilemma.
Re:’And if the wishes of the people are supreme in the Republic of India which from August 15, 1947 itself, already includes the whole of J&K (POK included).’
Will of the Indian citizens is represented by the Parliament, this will is curtailed in the case of J&K because ‘ no amendment of the Constitution of India shall extend to Jammu & Kashmir unless it is so extended by an Order of the President under Art. 370(1).
No alteration of the area of boundaries of this State can be made by Parliament without the consent of the Legislature of the State of J & K.’
Also ‘While an Act of Parliament is required for the amendment of any of the provisions of the Constitution of India the provisions of the State Constitution of Jammu & Kashmir (excepting those relating to the relationship of the State with the Union of India) may be amended by an Act of the Legislative Assembly of the State, passed by a majority of not less than two-thirds of its membership; but its such amendment seeks to affect the Governor or the Election Commission, it shall have no effect unless the law is reserved for the consideration of the President and receives his assent.’
This is not applicable to any other Indian state therefore the will of the Indian people is not supreme as far as J&K is concerned.
LP Sen commanded 161 Bde not 101 bde ( the latter is Kohat/sialkot bde of pak army)
Puneet@ — My mistake. Correction inserted in that response. Thanks.
@Andy – Re. “Seemingly you just skimmed over things without going into the details”
In legal studies precedents, interpretations, conventions, practices, judgements etc. all come after the written word. What I did may be skimming in your view but let me give you a friendly advise. If you really ever end up with people in the profession then don’t try to avoid the statute otherwise these professionals will not take you seriously.
Parliament gave you the written word called Article 370. Sardar Patel was the reason Article 370 actually got adopted. Before Sardar Patel throwing in his support, the congress was divided about Article 370. I don’t hold it against Sardar Patel that he allowed himself to support Article 370. What I do hold against Sardar Patel is that he allowed himself the luxury of being loyal to individuals at several points in his life.
Anyways Sardar probably also understood that Article 370 would get diluted due to several reasons which it did. Also one more reason I don’t hold Sardar responsible for Article 370 adoption.
But really nothing holds anybody back from amending the situation in this regard should they wish and will to. The wish and the will is missing.
Also removing Article 370 or even scraping the J&K constitution (which BTW is the new excuse – Ek Vidhan etc.) is not going to change any iota, in my estimation. So I will act in this light.
Since you are convinced that you will get a lot, needless to say you are also free to act.
So another point of difference.
Further Nehru in my view was wrong aplenty. Esp. give that he was the captain who wanted to be the captain. But then a captain is only as good as his team.
@~!…
Re: ‘If you really ever end up with people in the profession then don’t try to avoid the statute otherwise these professionals will not take you seriously’.
Where did you get the impression that I was avoiding any statute? Every word written about article 370 and its implications on the constitution of India is to the point and also verifiable from open sources.On the contrary it’s your post that gives the impression of not understanding the true implications of the said article ,wherein it became imperative for me to enlighten you by giving a detailed analysis of article 370,as everyone is aware half knowledge is dangerous.Now instead of acknowledging this fact you turn around and accuse some one of’ ‘avoiding statute’,its really comic if you ask me 😊.
Any right thinking person who goes through the above discussion will be able to discern who actually is avoiding what!On a strategic forum there’s no place for pet theories and facts will always have the final word.So spare everyone the agony and kindly refrain from handing out unsolicited advise.
@Andy nearly everything you cited falls in the category of ‘precedents, interpretations, conventions, practices, judgements’.
And most of it is backed only by the ‘opinion’ albeit considered of law ministries and the like. Since nobody ever challenged govt. practices, in a court of law, so these practices or convention became received wisdom. All of these opinions change with changes in facts and law and the judgements too change consequent upon the changes in law. Facts have actually already changed substantially since long and Law can be changed by Modi ji. He only has to ask support from other like minded parties. Even if Congress and NC do not support they can be ignored for their 45 odd seats.
But does the Indian state actually wants to admit these changes in facts to their logical extent.
You are merely repeating Sanghi stand. Which BTW I support – just not blindly and also my support is without any expectations of benefits. I support it only on principles.
India has already rejected the need for Plebiscite adducing the rationale that ‘pre-conditions’ cannot be met. Well these very same ‘pre-conditions’ are also applicable to the Maharaja’s Proclamation of March 5, 1948 and necessarily follows that these could not have been fulfilled either. The whole edifice of J&K constitution stands on the presumption that whole of J&K (including POK) will at some point acquiesce to the legal structure created by Proclamation+Article 370+J&K Constituent Assembly+J&K Constitution.
Be my guest, change the Indian Constitution and override the J&K constitution. The J&K constitution already expressly states that it is subservient to the Indian constitution for all matters that can be.
Please do show by actual deeds, that what you and Sanghis claim will happen if whatever you and sanghis say will get done – starting from whatever point, traversing whatever points and ending wherever you wish. My good wishes.
Modi has a huge mandate, including mine. Second only to Rajiv Gandhi and Nehru and Indira Gandhi. Bas ab kar do.
(1) Sanghis started from here – Lalkar Rally ‘bahas to shuru ho’
[indiatoday.intoday.in/video/narendra-modi-bjp-lalkar-rally-article-370-jammu-kashmir/1/327355.html)
BJP’s Lalkar rally in Jammu: Modi seeks discussion on Article 370
Headlines Today | December 1, 2013]
(2) The lawyers who till recently were thick with them, said the following:
[dnaindia.com/india/report-bjp-is-quiet-since-i-explained-article-370-to-narendra-modi-ram-jethmalani-2033198
Sat, 8 Nov 2014-05:11pm , New Delhi , PTI
“It is now a final article which nobody can touch. It is the understanding of the Kashmir Committee that this kind of a thing (repealing of Article 370) is out of question,” Jethmalani told reporters.
However, the Rajya Sabha MP said that the successive state governments in Jammu and Kashmir never raised any objections to modifications made to the Article from time to time.
“There were no objections from J-K government ever to any modifications on Article 370. If you do not like any amendments, vomit it out, but democratically,” he said.
The former BJP leader, who was expelled from the party in May, said he had explained the importance of the Article 370 to Prime Minister Narendra Modi and BJP has “kept quiet” about it since then.
“BJP was always talking about Article 370, some of them don’t even understand the Constitution of India at all. Modi has been explained the importance of Article 370 and that it cannot be repealed. I have told him to explain it to the BJP people to not speak about it. The BJP has kept quiet.
“Unfortunately, when they came to power, a minister, who is from Jammu, talked about its repeal and please take it that Modi gave him a tongue-lashing and told him that never again talk about it. He has since then not talked about it,” he said.]
(3) The exact same position is taken by Supreme Court here, where it implies that if done properly the Parliament can do it:
indianexpress.com/article/india/india-news-india/only-parliament-can-decide-on-scrapping-article-370-supreme-court/
(4) Subramanyam Swami a Sanghi leader has said that this requires only a minor thing to do.
(5) Still the BJP spokesperson are reduced to this:
[indianexpress.com/article/india/india-others/will-work-towards-abrogating-article-370-when-we-have-numbers-in-parliament-bjp/
By: Press Trust of India | Jammu | Updated: May 24, 2015 5:14 pm
“As far as the abrogation of Article 370 is concerned, it continues to be part of the core ideology of BJP but right now we don’t have enough numbers in Parliament to do away with it, but in future when we have the required numbers we will work towards its removal,” BJP national spokesperson Sambit Patra]
I am taking all this further and asking you to trash the whole thing if you absolutely need to for your purpose, because the ‘pre-conditions’ of unified J&K vote was not received and the Proclamation and Article 370 or anything linked to it are obviously contingent on that unified vote, besides being transitory. Both the transitory-ness and contingency were known and have persisted from day one. Under such a situation putting the citizen of India (which J&K people are) under constitutional difficulties is wrongful for natural justice. You know natural justice since you have stated these examples yourself.
Illegal aggression by Pakistan and legal accession of Maharaja (later disputed by Pakis without any proofs) is the basis of Indian position in Kashmir since beginning. Both events happened much much before in history. Since that date, every single day, has been a continuing wrong to all our citizens in J&K at multiple levels, including the insecurity of fundamental rights. My opinion is that the Supreme Court will not allow this sort of nonsense to go on if sought to be foisted under the excuse of doctrine of basic structure. Even if it allows these things, the status quo ante would still be something that is already happening and at worst will be restored by the Supreme Court. It is not as if Supreme Court will ask us to hand over J&K state to Pakistan.
Sir ji, I am not standing in your or Sangh’s way. I am all for it.
Just do it. 🙂
Are bhai ye sanghi kya hota hai?All I know is there’s only one right but a thousand wrongs.Anyway one looks at it article 370 is wrong and has no place in the Indian constitution (as you well know) if this is the sanghi point of view ,good luck to them.No arguments with anyone provided they are right.Whether or when article 370 gets abrogated or not is besides the point,just acknowledging that it has no place in the Indian constitution is a good start.
Just one question, why create so much discussion when there’s no divergence on the basic point?😊
Article 370 abrogation:
For those who have stayed for this long on the thread, here are some of the legal stuff modeled as a primer:
Refer – lawmin.nic.in/olwing/coi/coi-english/coi-4March2016.pdf
1) Article 370(1) starts with the words “Notwithstanding anything in this Constitution”. However the full stop is exactly at the end of clause 1. Implies that any part of Article 370 after the full stop of clause 1 is not protected. Thus the Explanantion that followed as a separate sentence after clause 1 was replaced in 1952 as under
______________________________________________________
From:
Explanation.—For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948
To:
Explanation.—For the purposes of this article, the Government of the State means the person for
the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the *Sadar-I-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.
vide (Ministry of Law Order No. C.O. 44, dated the 15th November, 1952).
*Now “Governor”
______________________________________________________
2) If the Explanation could be amended once then follows that it can be amended again and again and again. So long as it meats the doctrine of basic structure and follows the laid out procedures properly.
3) Article 368 is the one where the Parliament makes extensive amendments subject to the limitations set by the judgement in Minerva Mills case and the powers are so wide that nothing can stop the juggernaut. Specifically you can read:
______________________________________________________
368. [(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.]
[(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Fortysecond Amendment) Act, 1976] shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.]
______________________________________________________
(6) Please note Article 368(1) also starts with the words ‘Notwithstanding anything in this Constitution’. So that may theoretically create a clash between Article 370(1) and Article 368(1). The Supreme Court is not irrational. In such a case they will find a harmonious construction to give effect to both the provisions. But please note the Explanation to Article 370(1) is not protected by the non obstante words, nor was it ever. That is why the *Sadar-I-Riyasat can be replaced with *Now “Governor” vide (Ministry of Law Order No. C.O. 44, dated the 15th November, 1952). Subramanyam Swami knows this much clearly. Which is why he says we only need an executive order to get rid of Article 370 (he is right and he is wrong too depending upon circumstances and your personal capacity).
(7) Now you need to also read the following, redacted/extracted part of the Constitution. This lengthy order seems to be the reason why Mr. Ram Jethmalani had to intervene with Modi to give the argument regarding the doctrine of basic structure. Fuller reading of this order will help you get a better appreciation of how the Constitution of India and the Constitution of J&K were sought to be reconciled point by point around 1954 (enough time for Sardar to intervene who was healthy till summer of 1950 which gives about 1 year & 6 months after the end of the Indo-Pak war of 1947 which basically ended with suspension of hostilities on January 1, 1949 which in turn was later accepted as ceasefire line). This is also why the Constitution of J&K so unequivocally accepts that it is subservient to the Constitution of India. Abrahimc people know how to read and use law modeled along Abrahmic lines, which is what the Constitution of India actually is (frozen in time or at various points in time).
______________________________________________________
“APPENDIX I
THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954
(15) PART XX.
[(a)] [To clause (2) of article 368], the following proviso shall be added, namely:—
“Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370.”.
[(b) After clause (3) of article 368, the following clause shall be added, namely:—
“(4) No law made by the Legislature of the State of Jammu and Kashmir seeking to make any change in or in the effect of any provision of the Constitution of Jammu and Kashmir relating to—
(a) appointment, powers, functions, duties, emoluments, allowances, privileges or immunities of the Governor; or
(b) superintendence, direction and control of elections by the Election Commission of India, eligibility for inclusion in the electoral rolls without discrimination, adult suffrage and composition of the Legislative Council, being matters specified in sections 138, 139, 140 and 50 of the Constitution of Jammu and Kashmir, shall have any effect unless such law has, after having been reserved for the consideration of the President, received his assent.”.]
APPENDIX II
RE-STATEMENT, WITH REFERENCE TO THE PRESENT TEXT OF THE CONSTITUTION, OF THE EXCEPTIONS AND MODIFICATIONS SUBJECT TO WHICH THE CONSTITUTION APPLIES TO THE STATE OF JAMMU AND KASHMIR”
______________________________________________________
(8) At this point the proposal I support comes in but which flies in the face of recommendations and understandings of earlier highly informed people who have lived with this problem. However, my wishlist is absolutely aligned to the facts on ground today as well as to the facts along timelines in history. The proposal being to attack the whole problem from the get go, ie. the Proclamation of March 5, 1948 (linked earlier). Given the enlightenment that time has bestowed upon us and the precedent that has till date not been challenged in courts (Indian or international) w.r.t the abandoning of the pledge of Plebiscite in J&K, I am of the opinion that the Supreme Court is unlikely to ignore the actual turn out of events and is duty bound to take a view in consonance with the security of the fundamental rights of the citizens of J&K over a long history and may be over a long future. Also to add, should the SC still take a dim view of this proposal, they will end up recommending status quo ante, which will not be any worse than the way things already are. Even more importantly it will help the people of this country understand why and to what extent they should remain faithful to the western framework of legal practice that rules over them.
I agree my humble opinion is chancy, but remember the old adage – Truth never hurts. At least, not, more than the lies eventually end up doing. There is an arrow of life that will take its own course and getting the legal position cleared up will be a progress along the way to the truth. Should we not do all that today we may as well end up with the worst of all the worlds, given the general outlook of a large part of our establishment.
Though to be honest, I don’t think my proposal will even fly with the establishment and here are the pressure points which explain why it is so.
http://www.rediff.com/news/1999/may/28jk.htm
“While the Indian representative to the Security Council had thought that the ‘withdrawal and expulsion of the raiders and the invaders from the soil of Kashmir and the immediate stoppage of the fight… are the only tasks’ to which the Security Council was to address itself, the issue took such a bizarre and perplexing course that today, over 50 years later, the Kashmir chapter has become the Kashmir conundrum.”
The objectors in the Security Council earlier would have been US, China, UK. Now in future may be Russia will also join in with China and may be US and UK will withdraw. Ergo we are stuck, no matter what.
Indian bureaucracy is best at getting the worst of all deals for us. You see it is far more important to suck upto the world powers then acting like one. So tomorrow some world power will hand over an even rotten deal and some Great White Hope will have to sell that rotten deal to the Indian public. At that time it would be very useful to come back to the people and say look we now have full sovereignty over ‘our part of J&K’. So these guys are actually being visionaries, in their own world. A world to which, I don’t belong.
There is a chor darwaza also that Subramanyam Swami has suggested. Get the Assembly out of the way, get the Governor to sign anything and change the Constitution of India such that the Constitution of J&K becomes comes out in conflict with the Constitution of India. Supreme Court when challenged with respect to superiority will decide according to the unequivocal admission by the Constitution of J&K that it is subservient to the Constitution of India. THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 inserts proviso that the changes have to be in accordance with the Article 370(1) which includes the Explanation and which recognizes the Governor as equivalent to the Sadar-I-Riyasat. I don’t mind that route either.
However the best course of action before taking the chor darwaza, given the constraints seems to be the one I support (I don’t remember where I had occasioned it first – ready to acknowledge credits) but for that route to work, you will have to put the likes of Subramanyam Swami and Ram Jethmalani under one roof, lock the room and forget about the keys for about 1 month. One is good at trail law and another one is good at taking on big challenges. Alone both are a liability for the nation, to get them together somebody authoritative enough will have to make things happen.
Bura ho andy ka jisne mere sey itna kaam karwa liya.
Only one interjection to all this debate . You don’t have remove article 370 but you have to change the state subject law of J&K which precedes the independence of India. From at least cities and Industrial parks the property rights provisions have to be changed to allow non state subjects to own property for state’s development. Domicile laws as applicable in other states say 10 years residency are needed in J& K. Passing State subject stays from mother to child not just from father. These changes are needed for industrialization of J&K.
Partition refugees in Jammu have lived too long as second class citizens this needs to change.
@Primeargument,
Look at your wishlist like the following.
FIRST THE BACKGROUND:
Sometime back a somewhat non-serious PIL was filed but was rejected by the Supreme Court (SC). The prayer was that both Constitution (application to the State of Jammu and Kashmir) Orders 1950 and Constitution (application to Jammu and Kashmir) Order 1954 be quashed. While rejecting the PIL, the SC told the PIL petitioner B P Yadav that :
1) “Will it be done by the court or by Parliament? Can we ask Parliament to delete a provision from the Constitution? It is not for this court to do so,” observed the bench, also comprising Justice Amitava Roy.
2) “We can strike down a provision if it is unconstitutional but we cannot be asking Parliament to remove a provision. It has to be done by them (Parliament),” said the bench as it asked Yadav to file a better petition if he intends to pursue this matter any further.
indianexpress.com/article/india/india-news-india/only-parliament-can-decide-on-scrapping-article-370-supreme-court/
Sometime even before the above, this report also came in:
The J-K High Court, in its recent decision on reservation in government jobs, said that since the constituent assembly before its dissolution on January 25, 1957 didn’t recommend anything in this regard, Article 370 “not withstanding its title” of ‘temporary provision in constitution is a permanent provision of the constitution and can’t be abrogated, repealed or amended as the “mechanism provided under clause (3) of the Article 370 is no more available” after the dissolution of constituent assembly.
AS OF TODAY:
Another attempt by an RSS outfit is still in SC which actually sets a much lower but better achievable target. But then the better achievability is only going to be so in better hands. In soiled hands even diamonds gather grime. What they are doing is that they are attacking only a small part of the Presidential Order of 1954. Probably they believe that this part of the Presidential Order can be challenged better and communicated better to the court. That is, better compared to other parts. The legal logic so far as it has been revealed in the press (which may or may not be complete) appears weak and strange but the grounding can be made really great by keen people. Changing the Constitution through Presidential order basis an agreement between two political parties/netas, after bypassing the Parliament is just plain wrong. If I have heard it right in press, then the J&K government has actually claimed in court that Article 35A does not undermine the fundamental rights of citizens of J&K. Needless to say that view is wrong. But I wonder if it is even countered by the petitioner. The whole of the structure starting from the appointment of Sheikh Abdullah as PM by the late Maharaja till date is sorely prejudicial to the rights of both J&K and outside J&K citizens. As is to be expected Congress+NC are ranged against this ‘challenge’ to the Article 35A. So this RSS challenge can be done but I wonder if they really mean what they are claiming.
If you have to challenge Article 35A then it is easy. If you have to defend Article 35A against the rationale currently revealed, then also it is easy. If I remember correct the defence from the other side, was that it is settled law accepted by usage. And law (in western sense) is usage. That is why the Constitution allowed for triple talaq and what not in the name of freedom of religion. Triple talaq is obviously wrong but still allowed and respected by the court. Because the court is a court of law and not of justice.
A low probability but high value risk is that so much time is being taken to kick these fraudulent laws out that in the meantime the demographics would have changed and the adversaries would have that much more time to buy out your strengths. Net result some parts of this whole structure of law will become legal and only some will be ejected. So say for example you would have gained an ejection of Article 35A but the very question of Plebiscite and Residual Sovereignty would remain open. Current Sanghis would imagine that this will be managed easily because India is big with great future. When in fact this Plebiscite and Residual Sovereignty, business will come back to bite our future generations when the demographics of India would have irretrievably change. Already the Sanghi leadership is leaving no stones unturned to hurt the economy. We will have a large but poor population of Hindus if we keep ourselves under the Sanghis. Such a population will be easily divided up by a bunch of superior political-religious ideologies who predate upon natives as matter of ideological practice.
A high value & high probability risk also arises because, if just the Article 35A somehow ends up saved (somewhat difficult though in skilled hands) then you will have effectively consecrated the whole edifice of law that brought it about. And the procedure so consecrated would be applied as a precedent to your challenge to the rest of the Presidential Order 1950+1954 etc.
If I read it correct then one of the rationale given by this challenge to Article 35A is that the Presidential Orders could not have been made because Article 370(1)(d) does not provide for any way by which President can amend the Constitution of India which is the sole prerogative of the Parliament. Please note Article 35A never got approved in the Parliament and survives only basis the Presidential Order.
But if you read Article 370(1)(d) then that is not be the case actually:
Article 370(1)(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”
As I pointed out earlier the word ‘notwithstanding’ covers Article 370(1) including the Article 370(1)(d). Only Explanation to Article 370(1) and words thereafter are outside the scope of that ‘Notwithstanding’.
So if the senior Supreme Court advocate and former NDA cabinet minister Jagdeep Dhankhar, reportedly begins to believe that the addition or deletion of an Article amounts to an amendment to the Constitution and goes on to say that “The Constitution can be amended only by the Parliament as per procedure clearly laid out in Article 368. But Article 35A was never presented before the Parliament of India,”. He is clearly wrong. Based on law itself. Refer – tehelka.com/2015/10/bjp-shifts-aim-to-article-35a-in-jk/
Clearly the concurrence of the State Government is required and the President can specify these exceptions by way of an order. Off course this is going to be a temporary power and in ordinary course the amendments can only be made by the Parliament under Article 368 etc.
So unless you begin to attack the whole of the Article 370 alongwith the whole edifice that brought it about, this minor challenge based on so much of the revelations as have appeared in press is going to go nowhere. At best there would be a need to state the matters of the Article 35A using another Presidential Order, which the Government would be duty bound to do. Why? Because the Govt. never brought up the fact that the Proclamation of March 5, 1948 can never be fulfilled without going to a war.
If I really cared for Article 370 then I would have filed a separate Civil Petition of my own and asked the court to attach my case with that of this existing petition so that my voice could simply not be avoided. After that I would have issued a challenge to the Delhi Agreement 1952 which BTW nobody has seen till date and most likely does not even exist or exists only as private agreement between Nehru and Shiekh Abdullah. Then I would have challenged the whole system to show why their stand regarding Plebiscite and the Proclamation are not the same when in fact the ground situation for both is the same. Further why does this system not constitute a fraud on the fundamental rights of the citizens of J&K. But who the hell cares for their rights and those who do already have so much on their plate. Damn. What would you rather do – fight against Article 370 or fight against those bent upon destroying Indian economic and strategic capability.
See what happens is that sometimes these sundry petitions are intentionally put in just to weaken any future challenge. Nationalists must remain watchful of these things too.
May be people with sympathy towards Sangh will be satisfied that this will be done properly. I would rather treat this as a windfall if it ultimately turns out properly. But I will not hold my breath if it fails for reasons of not having been argued/prepared properly.
Last night I think I ended up giving the impression that the challenge to Article 35A was non-serious.
I have my doubts but that is a separate matter which I tried to highlight.
Any good argument can be destroyed if not deployed properly, is my fear.
The end result that may be achieved and held onto is perhaps my biggest doubt.
But that does not mean I am taking a position that the petition against Article 35A is a non-starter. It is very much a good start and that is why Supreme Court is willing to put time on it. I just wish it good, which does not seems much given the circumstances these days.
Here is the draft petition for reference and makes clear mention of the threat and debilitation to fundamental rights and much more:
kashmirlife.net/draft-petition-challenging-article-35-a-83169/
dailyexcelsior.com/presidents-jurisdiction-extend-provisions-garb-art-370-challenged-sc/
For those interested: Supreme Court says Article 370 limiting the Central government’s power to make laws for the state, had acquired permanent status through years of existence, making its abrogation impossible.
Follow the datelined links below.
20170808: ptinews.com/news/8964505_SC-seeks-Centre—-s-reply-on-plea-against-special-status-to-J-K
[SC seeks Centre’s reply on plea ag’st special status to J-K
New Delhi, Aug 8 (PTI) The Supreme Court today sought the response of the Centre on a plea challenging the validity of Article 370 of the Constitution that grants special autonomous status to Jammu and Kashmir.
The petition challenged the April 11 order of the Delhi High Court rejecting a plea saying nothing survives in it as the apex court has already dismissed a similar prayer on the issue.
A bench comprising Chief Justice J S Khehar and justices Adarsh Goel and D Y Chandrachud issued notice to the Centre on the petition which also sought a direction to declare the Constitution of Jammu and Kashmir as “void”, “illegal” and “ultravires” of the Constitution of India.
The bench asked the government to reply within four weeks.
In her petition, Kumari Vijayalakshmi Jha claimed that the high court had dismissed her plea by “wrongly following and misreading” the earlier judgement of the apex court.
She had contended in the high court that Article 370 was a temporary provision that had lapsed with the dissolution of the state’s Constituent Assembly in 1957.
The petition had said that the continuance of Article 370 even after the dissolution of the state’s Constituent Assembly and the J-K Constitution never getting the assent of the President of India or Parliament or Government of India, amounted to “fraud on the basic structure of our Constitution”.
Advocate Anil Kumar Jha, appearing for the petitioner, claimed that the high court considered only the first prayer and had not taken into account other prayers mentioned in the plea.
He said that earlier judgement of the apex court in 1969 was in a different context and, hence it could not have been relied upon.
“The high court kept the judgement reserved for about 13 months and on April 11, 2017 pronounced the verdict dismissing the writ petition without considering the merits/issues involved therein,” the petition said.
It also said the high court did not consider the judgment passed and ratio laid down by the apex court.
In July 2014, the Supreme Court had dismissed a plea challenging the special status granted to Jammu and Kashmir and had asked the petitioner to move the high court.]
timesofindia.indiatimes.com/india/article-370-has-acquired-permanent-status-supreme-court/articleshowprint/63603527.cms
[Article 370 has acquired permanent status: Supreme Court
TNN | Apr 4, 2018, 03.21 AM IST
Article 370 has acquired permanent status: Supreme Court
NEW DELHI: The Supreme Court on Tuesday said Article 370 of the Constitution, conferring special status on Jammu and Kashmir and limiting the Central government’s power to make laws for the state, had acquired permanent status through years of existence, making its abrogation impossible.
The observation came from a bench of Justices Adarsh K Goel and R F Nariman on a petition by Kumari Vijayalakshmi Jha, who sought a declaration that Article 370 was a temporary provision that lapsed with the dissolution of the J&K Constituent Assembly on January 26, 1957. She also sought a declaration that the constitution of J&K was void, inoperative and in breach of the Constitution.
The issue has acquired political overtones as there is a sharp divergence between the views of BJP and its partner PDP in J&K. The discussion also comes at a time when residency laws for J&K under Article 35A of the Constitution have been challenged for denying women marrying outside the state the right of inheritance and restricted employment.
Justice Nariman drew additional solicitor general Tushar Mehta’s attention to the SC’s 2017 judgment in State Bank of India vs Santosh Gupta case and said the controversy over Article 370 was settled by the court ruling the provision had acquired permanent space in the Constitution and it could no longer be abrogated.
The SC had said since the Constituent Assembly of the state ceased to exist, the President would not be able to fulfil the mandatory provision of getting its recommendation for its abrogation.
Appearing for J&K, senior advocate Rajeev Dhavan and additional advocate general M Shoeb Alam refuted the Centre’s claim that a similar petition was pending consideration before a bench headed by CJI Dipak Misra. Dhavan said the issue pending consideration related to validity of Article 35(c) of the Constitution and not Article 370.
Mehta said the Centre would study the implication of the 2017 judgment, which was on the applicability of Sarfaesi Act (bank securitisation law) to J&K and come back to the court with its view. The SC granted the Centre three weeks to formulate its response.]
20141204-dailyexcelsior.com/sc-constitutional-bench-upheld-validity-of-art-35a-claims-jk/
[SC Constitutional Bench upheld validity of Art 35A, claims J&K
Centre fails to file affidavit
Posted on 4/12/2015 by Dailyexcelsior
Neeraj Rohmetra
Jammu, Dec 3: State Government today strongly defended before Supreme Court the Constitutional validity of Article 35A of the Constitution, which allows the State of Jammu and Kashmir to grant special privileges and right to permanent residents.
The State Government has quoted several judgements pronounced by Constitutional Bench of the Apex Court on different occasions to vindicate its stand.
The affidavit on behalf of the State Government was filed by leading Constitutional expert of country Fali S Nariman and Advocate General, Jahangir Iqbal Ganai. Central Government, which is also respondent to the case failed to file any affidavit before the Supreme Court Registry today.
While terming the petition challenging the validity of Art 35A of the Constitution as ‘legally misconceived’, the affidavit of the State Government which is in possession of EXCELSIOR says, “the issue of Art 35A and the grounds advanced in support of the claims of petition had already been adjudicated at least on two occasions by separate Constitutional Bench of the Apex Court”.
Quoting SC judgements, the document says, “the writ petition ought to be dismissed in view of the verdict pronounced by the Constitutional Bench in ‘Puranlal Lakhanpal V. President of India & Others, (1962) 1 SCR 688’ and ‘Sampat Prakash V. State of Jammu and Kashmir and Another, (1969) 2 SCR 365 and therefore the issues raised in the instant petition are no longer res integra”.
“The legal contentions, similar to the ones raised in the petition, were already raised and argued in the Puranlal and Sampat Prakash case. However, the Apex Court in both these cases had negated and rejected the said contentions. The judgements holds good even today and are squarely applicable to the instant petition”, says the affidavit signed by Additional Secretary Law, Mustafa Ahmad Wani.
Questioning the delay in filing of petition, the affidavit says, “the Constitutional Order of 1954 came into force on May 14, 1954 and the instant petition, challenging its vires, has been preferred after a delay of more than 60 years”.
The issue raised in the petition had been well dealt in the Constitutional Bench decision in Puranlal Lakhanpal and Sampat Prakash Case. Further, the provisions enacted in Article 35A of the Constitution had been continuously acted upon and treated as valid, the same ought not be permitted to be challenged.
“The Constitutional Bench also dealt in detail on the powers of the President to amend the Constitution by incorporating a new Article of permanent nature and was in no manner exceeding his powers by incorporating Article 35A in the Constitution of India”, says the document.
The affidavit says, “since Article 370, as enacted and amended remained in the Constitution of India, as an integral part thereof and since Presidential Order of 1954 i.e. Constitution (Application to Jammu and Kashmir) Order, 1954, has been recognised and acted on, as valid, ever since its promulgation and have been challenged, the challenge has stood rejected by the two Constitutional Benches of the Apex Court”.
“The petitioner herein has deliberately omitted to notice the impact of the proviso to Article 368(2) of the Constitution of India, which is to the effect that no amendment by the Parliament in the Constitution under Article 368 would ever have effect in relation to State of Jammu and Kashmir unless applied by order of the President under Clause -1 of Article 370”, the document added.
The affidavit has also opposed the contention of the petitioner that Article 370(1) of the Constitution of India doesn’t contemplate or permit the Presidential order amending the Constitution of India and its application in the State of Jammu and Kashmir. “Article 35A of the Constitution also doesn’t infringe any fundamental right guaranteed to citizens as alleged or that the provisions of Article 368 of the Constitution hold the field even in respect of matters covered by Article 370 of the Constitution”. Article 35A of the Constitution cannot be considered to be in contravention of Articles 14,19 and 21 of the Constitution of India as alleged”, says the affidavit.
The Supreme Court Registry admitted the affidavit filed by State Government and criticised the Centre for their failure to file any affidavit. The Registry instructed that the case be listed before the SC Bench for further hearing on the issue.
The preliminary affidavit was filed in response to a writ petition filed by Sandeep Kulkarni, President of a Society called “We the Citizens”, wherein the latter has contended that the restriction imposed through addition of a new Article 35-A to the Constitution was beyond the President’s powers under Article 370(1)d. The impugned provision is part of a Presidential Order of 1954 and has serious repercussion on the Status enjoyed by J&K.]
20170718-livelaw.in/wont-respond-plea-challenging-article-35as-constitutional-validity-centre-tells-sc-cji-refers-matter-three-judge-bench/
[Won’t Respond To Plea Challenging Article 35A’s Constitutional Validity: Centre Tells SC, CJI Refers the Matter To Three Judge Bench
BY: PRABHATI NAYAK MISHRA JULY 18, 2017 12:05 AM 27 SHARES
The Centre has told the Supreme Court that the government will not file any affidavit responding to a petition challenging the constitutional validity of Article 35A, which grants ‘special status’ to permanent residents of J&K and prevents the rest of Indian citizens from acquiring immovable property and exercising voting rights in the state.
Attorney General KK Venugopal told the bench of Chief Justice of India Justice JS Khehar that the “Government of India will not file counter affidavit as the matter involves pure question of law.
Therefore, the matter may be fixed for final hearing before a larger bench”.
The CJI fixed the matter before a three-judge bench after six weeks for final hearing. It has been more than two years after filing of the petition, but the Centre has not filed its response. However, the Jammu and Kashmir state has already filed its reply to the petition.
Senior advocate KN Bhatt, assisted by advocate Barun Kumar Sinha, submitted that since the matter is serious in nature as the constitutional validity of Article 35A read with Article 370 (1)(d) of the Constitution of India is involved, therefore, it requires urgent consideration.
Earlier, through its affidavit, the state government in the state had said the apex court had already dealt with the President’s 1954 order, which allowed only the permanent residents of J&K to buy and sale the immovable properties, getting government jobs and voting rights there and restrained others.
It submitted that Article 370 was enacted and amended remained in the Constitution as an integral part thereof and since the Presidential Order of 1954 has been recognised and acted on, as valid, ever since its promulgation, and when challenged, it was rejected by the two Constitution benches of the Supreme Court and sought dismissal of the petition.
The petition was filed by ‘We the citizens’, a Delhi-based non-governmental organisation registered as a society, through its president Sandeep Kulkarni in August 2014.
In the petition, it was stated that J&K is an integral part of India and, therefore, the citizen of J&K as well as citizen of other on the ground of certain clauses/paras contained in the Constitution application to J&K order 1954 are violative of of Article 14 of the Constitution of India.
Although the President has the power to modify/ clarify the Article 35 with regard to the state of J&K, but his 1954 order was illegal, the petition stated, as “with the insertion of Article 35 A, it can only be done by the Parliament through an amendment”….
Read more at: http://www.livelaw.in/wont-respond-plea-challenging-article-35as-constitutional-validity-centre-tells-sc-cji-refers-matter-three-judge-bench/%5D