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Anil kumar TP (MSW(HR) student)     29 November 2009

why J&K is excluded from the Act

I observed  in most of the Act it is written

scope and coverage: Extends to the whole of India except J&K.........

why J&K is excluded???

under which provision of law???


 11 Replies

adv. rajeev ( rajoo ) (practicing advocate)     29 November 2009

Itz nothing but political parties agenda.  It is great mistake done by our former political leaders.  And I say that particularly it is the mistake of neharu.

Rekha..... ( Practicing lawyer(B.Com LL.M in Business law ))     29 November 2009

Good Question and replied in a sensetive manner. But Why Mr . Nehru made mistake? Cicumstances behind it please explain in detail. 

Anil kumar TP (MSW(HR) student)     29 November 2009

please dont blame any political leader.......... tell me the exact reason for making such exemption...

dhiraj choudhary (n/a)     29 November 2009

no act passed by the  parliament of india is applicable to the state of j and k unless it is adopted by the assembly of  j and k state govt. coz of art.370 of the indian constitution n acc. 2 me this is one of the root cause of kashmir dispute. further j and k state has its own contitution... ...

N.K.Assumi (Advocate)     29 November 2009

I am of the view that, India is a Union of States where all the princely States joined together to form India that is Bharat and not a federal States, and to which  Union, J & K did not comprised of it, rather there was claim for complete Sovereignty for J & K. the conflict was more complicated with the partition of India into Pakistan and India with Pakistan claiming J & K as its territory resulting in bl**dy war between the two States with ongoing military conflicts till to day though not amounting to international conflicts, as per the law of Peace. the conflicts is deeply embeded in the past history of J & K.

dhiraj choudhary (n/a)     29 November 2009

go through histry proprly j n k is very much part of india

Kanaksinh P.Boda (Educationist/Lawyer)     30 November 2009

While division was done of most of the states while partitioning India and Pakistan, the matter pertaining to J & K remain undecided and it was decided that these states will be special states in a Article in the Indian constitution till the matter is amicably settled between both the countries under care of Indian Govt. Later, due to pak invasion, some part became POK (Pakistan Occupied Kashmir) from which now there is constant infilteration going on. The status quo is mantained unde the observation of International Line of control, then decided by UNO. However, for details you may read the book written by Pandit Jawarlal Nehru/or even see a movie on Sardar Patel, who was then a Home Minister.

Shree. ( Advocate.)     30 November 2009

Dear Anil Kumar,

please dont blame any political leader.......... tell me the exact reason for making such exemption..?????

Brief History - Article 370

Publication: Indpride.Com

On October 26,1947 Hari Singh, the Maharaja of Kashmir, signed the Instrument of Accession of Kashmir to the Dominion of India. Under this Instrument, he surrendered the jurisdiction of three subjects - Defence, External Affairs and Communications to the Central Government. Lord Mountbatten, presumably with the knowledge and consent of Pt. Nehru, unwisely insisted that the final decision of the accession would be ratified by the Constituent Assembly of Jammu & Kashmir.

Was it not a blunder committed by Nehru to follow Lord Mountbatten blindly? When neither Maharaja Hari Singh nor Sheikh Abdullah demanded the ratification of the Instrument of Accession by the Constituent Assembly of Jammu and Kashmir, it was wrong on the part of the Government of India to insist on the ratification. It was a Himalayan blunder committed by Nehru.

For the transitional period, from the date of execution of the Instrument of Accession to its ratification by the Constituent Assembly of Jammu and Kashmir, some temporary provisions in the form of Article 370 were made in the Indian Constitution. Under the Article those parts of Indian Constitution which pertained to Defence, External Affairs and Communications could be extended to Kashmir in consultation with the state government. The parts that dealt with subjects other than those could be extended with the concurrence of the state government. The executive of the state was thus being given not just a legislative function, it was being given a legislative function in regard to the Constitution under which the people of the state were to live. This is how Article 370, which made the bulk of the Indian Constitution inapplicable to Jammu and Kashmir, was incorporated in our Constitution.

During the annexation of states to the Union of India, Sardar Patel had been paying little attention to Kashmir. But once Pakistan invaded the Valley, and as the situation went out of control, the Sardar stepped in, and it was his clarity and firmness, along with the valour of our Army and Air Force which saved the Valley. Soon enough Pt. Nehru inducted Gopalaswami Ayyangar as Minister Without Portfolio to help him take charge of policy regarding Kashmir. The Sardar had not been consulted regarding Ayyangar's induction, although it was to impinge directly on his responsibilities. This increased the rift between Nehru and Sardar and led to the resignation of Sardar from the government. With Mahatma Gandhi's intervention the Sardar was made to stay.

Sheikh Abdullah apprehended that if Hindus, who migrated from Pakistan to India, were allowed to settle in the state of Jammu and Kashmir, they would transform the majority of Muslims in the valley into minority. Hence he pressurized Pt. Nehru to get Article 370 incorporated in the Constitution of India, which harmed the entry of non-Kashmiris into the State of Jammu and Kashmir. Thus the nefarious plan to continue outnumbering Hindus in the valley was fulfilled by the dint of Article 370. If pernicious Article 370 had not been incorporated in our Constitution, Hindu immigrants would have settled in the valley to reduce the Muslims to minority, and the problem of Kashmir would have been solved for ever.

Pt. Nehru had finalised the draft Article in consultation with Sheikh Abdullah. The Sardar had not been taken into confidence. The draft finalised, Nehru proceeded abroad on a tour, instructing Ayyangar to see the draft through the Constituent Assembly. In the Congress party there was a strong body of opinion, including Sardar, which looked askance at any suggestion of discrimination between the Jammu and Kashmir state and other states as members of the future Indian Union and was not prepared to go beyond certain limits in providing for the special position of Jammu and Kashmir. When Ayyangar put the draft before the party meeting, the announcement was followed by a storm of angry protests from all sides. Both Ayyangar and his proposal were torn to pieces by the party.

Later Ayyangar called on Sardar for help, explaining the genesis of the proposals he had put before the party and appealing to the latter to come to his rescue. The Sardar convened a meeting of the Congress Executive the following day. The meeting was one of the stormiest the party had ever witnessed, the opinion in opposition to the Article was forcefully and even militantly expressed and the issue even brought in the sovereignty of the Constituent Assembly to draw up the Constitution without being tied down to the apron-strings of the Kashmir State Constituent Assembly. That was the strength of opinion in the party against the draft Article.

The Sardar intervened "to plead that because of the international complications a provisional approach alone could be made leaving the question of final relationship to be worked out according to the exigencies of the situation and the mutual feelings and confidence that would have been by then created". Later the Sardar told his private secretary that he had done so because in Nehru's absence Ayyangar was acting under orders and had the Sardar opposed him, people would have said that he was taking revenge on Nehru's confidant when he was away. Ayyangar had appealed to him for help, so how could he let him down in the absence of his Chief.

When the draft Article was placed before the Constituent Assembly no substantial objections were tabled. Sheikh Abdullah, who had jointly devised the provisions with Nehru, had tried, once Nehru had left on his tour, to stiffen the provisions further in favour of the Kashmir Government, which of course meant himself, saying that he had to discharge his duty towards his people, and that in any case the Working Committee of the National Conference was not agreeable to the draft. Ayyangar had capitulated, altered the draft and reported the change to the Sardar. The Sardar shot down the change, writing to Ayyangar, "I do not at all like any change after our party has approved of the whole arrangement in the presence of Sheikh Sahib himself. Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people. Of course, he owes no duty to India or to the Indian Government, or even on a personal basis, to you and the Prime Minister who have gone all out to accommodate him." And added, "In these circumstances, any question of my approval does not arise." Thus, the changes were shot down but the original draft went through without a murmur.

The Sardar died just a few months later on 15 December 1950. Barely two years after his death, on 24th July 1952, when the Article came in for criticism in the Lok Sabha, in defence Nehru took the stand that the Article was dealt with by Sardar in his absence and he was not responsible for it. He said "This came to an end in November, I think, of 1949 when we were designing our Constitution in the Constituent Assembly. Well, we could not leave everything quite vague and fluid there. Something had to be stated in our Constitution about Jammu and Kashmir State. That problem had to be faced by Sardar Patel. Now, he did not wish to say very much, he wanted to leave it, we all wanted to leave it in a fluid condition because of these various factors, and gradually to develop those relations. As a result of this, a rather unusual provision was made in our Constitution relating to Jammu and Kashmir. That provision is now in Article 370 in Part XXI..."  Thus, the authorship of that to which the Sardar was so emphatically opposed was attributed to the Sardar!

Pt. Nehru, on 27th November 1963, during the Question Hour in the Lok Sabha  said, "Our view is that Article 370, as is written in the Constitution, is a transitional, in other words a temporary provision. And it is so........As a matter of fact as the Home Minister has pointed out, it has been eroded, if I may use the word, and many things have been done in the last few years which have made the relationship of Kashmir with the Union of India very close. There is no doubt that Kashmir is fully integrated.......So we feel that this process of gradual erosion of Article 370 is going on......"

From the above details we can safely derive the following inferences:
Article 370 was not a device to give Kashmir some special status vis-a-vis India. It was a device for extending provisions of the Constitution of India a step at a time to Kashmir. The very text of the Article makes this manifest. By the mechanism of this Article, part after part of the Constitution of India was to be extended to Kashmir.
It was to be a temporary device - one that was to be used for this purpose till a Constituent Assembly of the State could be constituted and could, as was expected then in Delhi, do the job in one go. The members of the Constituent Assembly who were so insistent on ensuring democratic norms and control in every nook and cranny of the Constitution enacted this manifestly undemocratic arrangement because the device was to be in use for a very short while only. How different parts of the Constitution would apply to Kashmir was to be determined by a constituent assembly of the state, and this was to be constituted soon.
There was tremendous opposition to the Article within the Congress itself. The Congress was militantly opposed to this facility being made available in the case of Kashmir. But for the Sardar setting his better judgement aside, and that for reasons which had nothing to do with the merits of the Article, the provision would have been scotched by the Congress itself.

Today's Position

And today, to even ask that this temporary provision be removed is to go back on "our solemn commitment to the people of Kashmir", is to be communal. The reasons for this are:
The first reason is crass ignorance - the average Congressman has not read accounts of his own party's position on the matter, he knows nothing of what was said in the Constituent Assembly or Parliament, nor does he know anything about what the very men - Pt. Nehru and Sardar Patel - whose photographs he hangs on his walls had said and thought on the matter. So someone tells him there was "a solemn commitment" and he starts shouting there was "a solemn commitment".
The second reason is that the demand for scrapping this Article has been espoused most of all by the BJP and its predecessor the Bharatiya Jan Sangh. Every other party has therefore come to espouse its retention. As by their (all other parties' ) definition, the BJP is "communal", the demand that the Article be scrapped, espoused as it is by the communal party, is communal! And, ipso facto, asserting that it must not be scrapped is secularism!
The third reason is simplicity itself, and it is fatal. The transformation of the Article - from being a very temporary provision to one keeping which unchanged is our "solemn commitment" - is but an aspect of the progressive enfeeblement of our State. As the country and its rulers have lost the capacity to enforce its laws, they have dressed up that incapacity in priciple.

Horrendous Consequences of Article 370

1. Secessionism spread to other states

The venomous tendencies of secessionism and separatism, strengthened by those, who incorporated the baneful Article 370 in the Indian Constitution, later on spread to Nagaland, Meghalaya, Mizoram and the Punjab.

2. Regionalism and parochialism

The Article 370 tanned and fed the forces of regionalism, provincialism, parochialism and obscurantism. It created regional conflicts, collisions and controversies in truncated India.

3. Denial of fundamental right to settle permanently

Under Article 19 (1) (e) and (g) of our Constitution, it is fundamental right of the citizens of India to reside and settle permanently in any part of the country, and to practice any profession or carry on any occupation, trade or business. But Article 370 deprived the citizens of India of the right to settle permanently in Jammu and Kashmir. Is it not a strange discrimination that citizens of Jammu and Kashmir could settle in any province of India but the citizens of India could not settle in Jammu and Kashmir, because of this discriminatory Article 370? Even Pt. Nehru, the Prime Minister of free India, could not settle in his own ancestral land Jammu and Kashmir, because of the baneful barrier of Article 370. No citizen of India could go to the state of Jammu and Kashmir without a permit issued by the state government, headed by Sheikh Abdullah. Dr. Shyama Prasad Mookerjee, the founder of Bharatiya Jana Sangh (the progenitor of BJP) defied the permit system and entered the territory of Jammu and Kashmir without permit. He demanded from Nehru Government the abrogation of the detrimental Article 370, which smacked of secessionism. Consequently he was arrested on May 11, 1953, and detained in Srinagar Guest House. On June 23, 1953, Dr. Mookerjee breathed his last, while in police custody in the Srinagar Hospital under suspicious situation: The unofficial probe pointed to medical murder. Thus the founder of Bharatiya Jana Sangh sacrificed his life for the abrogation of the venomous Article 370.

4. Denial of Fundamental right to purchase property

Under Article 370, citizens of India cannot purchase immovable property in the State of Jammu and Kashmir, but the people of Kashmir can purchase property in other states of India.

5. Deprivation of the right to vote

The citizens of India cannot become the citizens of Jammu and Kashmir. Due to Article 370, they are deprived of their right to vote in the elections to the state assembly or municipal council or panchayats.

6. Denial of Jobs

On account of Article 370, Indian citizens cannot get jobs in the state of Jammu and Kashmir. All the jobs in the state are reserved for the citizens of the state.

7. Detrimental to women of the state

Article 370 is highly detrimental to the women, who are even born and brought up in the state of Jammu and Kashmir. If a woman, who is permanent citizen of the state, gets married to a man who is not a citizen of the state, she loses her properly. She is deprived of even her ancestral property. In the state of Jammu and Kashmir, domicile certificates issued to women are valid up to their marriage only. They have to acquire fresh 'Permanent Residence Certificate' after their marriage.

8. Denial of admission and job to Kashmiri women after marriage

If a woman, who is born and brought up in Jammu and Kashmir and is permanent citizen of the state, marries a citizen of India, she cannot get a job in the state, nor can she get admission in medical, engineering or agricultural colleges established with the financial aid by the Union of India.

9. Victimization of Hindu Immigrants - Supreme Court helpless:

On account of unholy partition of our holy Motherland, unfortunate Hindus were ousted from their ancestral homes in West Pakistan. A few thousand Hindu families migrated to Jammu and Kashmir and settled there. Though, fifty five years have elapsed since their migration, yet they, their children and even grand-children have not been granted citizenship on the ground that outsiders cannot settle permanently in the state on account of Article 370. Consequently, these unfortunate Hindus are deprived of their fundamental rights. They cannot purchase land for construction of their houses. Their names are not included in the electoral rolls of the state assembly. Hence, they cannot exercise their franchise in elections. They cannot get Government or semi-government jobs. They arc not sanctioned loans by the state government. They are not granted government licenses for the purpose of business. Their children are not granted admissions in medical or engineering colleges of the state, though the Government of India bears most of the expenses of the said colleges. Thus, they are treated as second-class citizens in a state, which is declared as an inseparable part of India. Having seen no other alternative, the unfortunate displaced persons knocked the door of the Supreme Court. It is a matter of irony, agony and astonishment that though the Supreme Court realized the injustice rendered to them; yet, it could not give any relief to them because of the discriminatory Article 370. It is a heartrending tale that the honorable judges of the Supreme Court, in spite of having recognized their grievance as justifiable, expressed their inability in their judgment to give any relief to the unfortunate Hindu immigrants in view of the peculiar constitutional position prevailing in the state.

10. Incapability to alter the boundaries of Kashmir

Under Article 3 of the Indian Constitution, the Parliament has the right to change the boundaries of any province, provided the President consults with the authorities of the concerned province before signing the bill. But, on account of Article 370, the Parliament of India cannot alter the boundaries of Jammu and Kashmir. For doing so, it has to seek approval from the Constituent Assembly of Jammu and Kashmir. It indicates that the Constituent Assembly of Jammu and Kashmir is above the Parliament of India. Had Pt. Nehru not applied Article 370 to the state of Jammu and Kashmir, the Indian Parliament could have split Kashmir into various parts and annexed the said parts to the adjoining provinces. The only panacea to the problem of Kashmir is to abrogate Article 370, split Kashmir into parts and annex the said parts to the adjoining provinces in such a way that the Muslims may lose the majority, and Hindus may be induced to settle permanently in the said parts with overwhelming majority. The well-planned systematic dispersal of Muslim population and settlement of Hindu population in its place is the only remedy to the malady of Kashmir.

11. Non-acceptance of Hindi

The decision of the Union of India pertaining to Hindi as National language could not be applied to Jammu and Kashmir because of Article 370. No member could speak in Hindi in the State Assembly without prior permission of the speaker.

12. No CBI in Kashmir

On account of baneful barrier of Article 370, Central Bureau of Investigation (CBI) was not allowed to work in Jammu and Kashmir. Thus Sheikh Abdullah and his accomplices were let loose to collude with Pakistani conspirators and infiltrators. The reports of his collusions and conspiracies with Pakistani agents and spies could not reach the ears of the ruling leaders of India.

(Based on A SECULAR AGENDA by Arun Shourie and HORRENDOUS CONSEQUENCES OF ARTICLE 370 by Kanayalal M. Talreja, RASHTRIYA CHETANA, March2004)

Rekha..... ( Practicing lawyer(B.Com LL.M in Business law ))     30 November 2009

Thank you very much Shree Sir. what a amazing explaination. Very good knowledge for us.

Anil kumar TP (MSW(HR) student)     01 December 2009

Thank you very much Adv. shree for explaining the history in deatail...........

Anil Jangid (HR Manager)     01 December 2009

Due to dirty politix,appeasement of minoerity

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