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The latest controversy has been brought on the horizon by the politicians and the media vis-à-vis the mandate of Chapter-III in the Indian Constitution regarding the scope of Fundamental Rights incorporated in Article 12 to Article 35 of the Indian Constitution. There is no dispute on the fact and law that Fundamental Rights enshrined in the Constitution of India as mentioned in Chapter-III of the Indian Constitution are applicable to every citizen of India since January 26, 1950. Chapter on Fundamental Rights was applicable to all the citizens of India including the Indian citizens in J&K.   The role of the Constituent Assembly of India came to an end on January 26, 1950 when Constitution of India was enacted and made applicable to India from Jammu and Kashmir to Kanyakumari.

Under special circumstances, may be, political compulsions State of J&K was not brought under the cover of the Constitution of India as a whole. The Constituent Assembly of India inserted Article 370 in the neck of Indian Constitution for the reasons to be debated one day. Any how, Article 370 was brought as a temporary provision inside the Constitution of India. The Constituent Assembly had clearly debated under the Chairmanship of Dr. Bhimrao Ambedkar that the provision was only temporary and shall be relaxed at appropriate time.

The consequences were sad and undesirable even unexpected for several reasons which shall be discussed by the intellectuals and thinkers someday. But what happened in J&K following this temporary provision say Article 370 has been out of expectation of the people of the country. A Constituent Assembly was framed in J&K under the leadership of Sheikh Mohd. Abdullah who was nominated as Prime Minister of J&K by Maharaja Hari Singh in 1948 before the Maharaja migrated from J&K to Bombay. He remained in Bombay all his life and died in 1961 in Bombay itself. His ashes were brought as he had desired in his will to Jammu Tawi and immersed in the Jammu Tawi by his only son, Dr. Karan Singh, the then Sadar-e-Riyasat of J&K.

This is necessary to mention the political happenings between 1948 and 1961. Maharaja Hari Singh was literally forced to leave J&K. He settled in Bombay and remained there till his death in 1961. Yuvraj Karan Singh was designated as the Regent in place of his father from 1948 till 1952.

After January 26, 1950 when Constitution of India was promulgated in the entire country excepting J&K. Article 370 incorporated in Constitution of India which commanded that Parliament of India shall have no legislative power vis-à-vis J&K. The President of India was given the mandate to make laws in respect of three subjects namely, Defence, Foreign Affairs and Communications (with Allied Matters) to make laws whereas rest of the subjects were to be dealt with by the State Govt. It is also important to mention that, “For the proposes of this article, the Government of the State meant the person for the time being recognized 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 5th day of March, 1948.”

This is very important to note that Article 370 also introduced Clause-3 in Article 370 saying that “President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as may specify.”  

A proviso was inserted which commanded that “recommendation of the Constituent Assembly of the State referred to in Clause (2) shall be necessary before the President issues such a notification.” It is very important for the historians, intellectuals and  the parliamentarians to understand that this proviso was valid only during the life of the Constituent Assembly of J&K. Constituent Assembly of J&K terminated/came to an end on January 26, 1957 when J&K Legislative Assembly adopted its own Constitution. This proviso disappeared and the President of India was free to act whenever he desires on the command of Clause (3) of Article 370. This subject I had conveyed to President of India during my meeting and urged on the basis of the constitutional interpretation. The President of India today and even since 1957 was competent to bring any amendment or change in any provision contained in Article 370.

As far as Article 35(A) is concerned it has to be viewed legally and constitutionally from different prospects. Article 35(A) was not created/implied by the Constituent Assembly nor it has been enacted by the Parliament of India. Article 35(A) is only from outside the fort of Chapter-III of Constitution of India relating with the Fundamental Rights enshrined for the citizens of India only. This amendment was brought on May 1954 for political reasons, may be to find a way out to continue Sheikh Mohd. Abdullah in detention after his dismissal from premiership of J&K on August 9, 1953. British Lawyer, Dingle Foot while arguing against the alleged detention of Sheikh Abdullah in 1954 in Jammu Jail had raised the contention that no Indian citizen could have been detained without trial for more than three months. The Govt. of India and the Govt. of J&K wanted Sheikh Abdullah to continue under detention. The Prime Minister of India Pt. Jawaharlal Nehru, according to information, addressed a letter to the then President of India, Dr. Rajendra Prasad with a proposal that Article 35 should  be amended.

Article 35(A) was conceived without any legal or constitutional support. The impression given was that President of India shall amend any provision in the Constitution may it be Article 35 and exclude the citizens of India from its cover in any part of the country. It was one of the greatest tragedies of the time that the citizens of India in J&K were deprived of their Fundamental Rights enshrined in the Constitution of India from Article 12 to 35. The President had limited power under the Constitution to introduce any amendment etc. or change any provision of the Constitution for a limited period of six months. This amendment proposed by the President of India in May 1954 was valid till December 1954. This is sad and unfortunate that this country has so many historians, intellectuals, revolutionaries and unparallel thinkers yet none has cared to study the implications/scope of this Ordinance issued by the President  of India in May 1954.

I only call upon the academicians, lawyers, intellectuals, media and all those who believe in democracy and rule of law to study in-depth the reasons and the history buried under the grave of Article 35(A). This is Article 35(A) which has no constitutional standing nor it was even discussed, argued and debated in any House of Legislature. The greatest misfortune, I see is that this 35(A) which I call a draconian law under which I have personally suffered detentions for years in J&K without trial. My several friends, political colleagues have also suffered jails under illegal detentions. Why the  present rulers as well as ex-rulers in the State of J&K have been supporting 35(A)? This is 35(A) which is born without parents and for the reasons to use detention laws against the genuine political activists in J&K. 

I was shocked, the other day, to hear my dear colleagues in the bar arguing in favour of Article 35(A). Who was the author of 35(A)? Whose womb this 35(A) was conceived? What effect it has on the innocent law abiding citizens? Does this 35(A) stands as a wailing wall between the civil liberties and the citizens of India in J&K? What the relevance of Fundamental Rights enshrined in the Constitution of India for the citizens of India  in J&K in the presence of Article 35(A)? Let us start a debate on this subject whether this is for the protection of Fundamental Rights of the Indian citizens in J&K?

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SRINAGAR: Mark Zuckerberg, the CEO and the Founder of Facebook, knew least that the platform he built in 2004 “to help connect people at colleges and a few schools”, could also become a vehicle to spread the ‘evil’ instantly and become an inspiration for many youth to do the ‘craziest and wildest stuff’. Given the unchecked access to smartphones bought almost solely for sophisticated cameras and uninterrupted internet services, the youth seem to take values for a ride.  

Giving in to the tantrums and ‘saner arguments’ put forward by their wards about how important it is to stay connected in the virtual world and knowing themselves the positive side of social media, parents seem to have seized keeping a close eye on their children’s activity online. This has resulted in the anxiety among parents, as they continue to remain in the oblivion, and the moral decay in the youth.

According to a survey conducted in 2016 in United Kingdom, 40 percent of parents said that they were “concerned or extremely concerned about social media having a potentially damaging impact on children”. If used with a caution and by adhering to the social networking sites’ guidelines, Facebook’s for instance, on criminal activity, sexual violence and exploitation, violence and graphic content, hate speech, nudity, etc., the social media could still live upto it expectations to help people live as a community which is connected, caring and morally upright.

In the backdrop of Kashmir conflict, the social media has come in handy in attracting more recruitment for the militant organisations. Burhan Wani, the slain young militant commander of Hizb-ul-Mujahideen outfit, used social media to attract more youth and send his message, as in a video uploaded on social media in 2016, Burhan is seen urging the youth to join him and asking the police to stop fighting against the militants. Post his death on July 8, 2016, the militant organizations continue to use social media, especially in confirming new recruitments.

Rumours also get a free ride on social media in Kashmir, as in the words of a Kashmir-based journalist who wrote on his Facebook account, “If rumours were a country, it would be Kashmir”. These rumours come with their own complications which often tend to lead to widespread chaos. The same was seen in 2016, when a rumour that some children had died due to expired vaccine was spread through social networking sites. People in thousands rushed to hospitals along with children who were administered pulse polio drops on that day. If it were not for the announcements made on television and radio, the chaos was unlikely to subside soon. 

In Kashmir, where internet is often snapped by the state, many youth take to social media to live broadcast events unfolding before or around them, be it an encounter, a protest or an accident involving a local and a military vehicle.  Pertinently, according a recent report in the Hindu, a clampdown is underway in Jammu and Kashmir to contain the flow of ‘fake news’ on social media platforms.  In our part of the world, i.e. in Kashmir despite the sporadic internet, the use of social media is considered as only means of entertainment, as a result it has drew a major impact on every individual’s life and on corporations, entrepreneurs, nonprofit organizations, social groups, political parties, and government as well.

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Everybody has a view on Kashmir, a long pending dispute between India and Pakistan in South Asian region since last seven decades. I also have my own view on Kashmir. Since childhood I grow up witnessing harshment, torture, abuse and so on.  As i grow up i learnt Kashmir is a big Poltical Dispute between India and Pakistan.

While India calls Kashmir as its "Internal Organ", Pakistan also says Kashmir is our "Jugular Vein" but the politicians of both the countries fail to address and solve the real Kashmir issue. They raise "Kashmir Issue" to get public attention in order to get votes and come in power but they forgot everything to deliver on ground when they come in power.

Its a common Kashmiri who suffers a lot of emotional trauma by witnessing killings of little buds, youth's and old age people almost on daily basis because of their political greed.  Besides this, torture, harassment, manhandling by government forces also adds fuel to fire, which is forcing lot of youth's even well qualified/educated students also are picking up arms to fight against these atrocities and this is really alarming. 

But, the seriousness of this issue has no effect on politicians from either side, by talking about this issue, they either want to remain in news or just do a vote bank politics. For them, Kashmir certainly is a political tool to grab public attention.  During election time "Kashmir Issue" is being raised randomly by politicians from both the countries for their political benefits, and after getting in power, the don't work on ground so no change can be seen in Kashmir from last seven decades. 

United Nations have also asked both the countries to come forward and start dialogue process to solve the Kashmir Issue. Till date the resolution of Kashmir issue has been put up 18 times before United Nations but no action was taken on it. The people of Kashmir also feel disappointed and betrayed as the leadership of both the countries and Kashmiri separatist leadership (Hurriyat) also failed to address the aspirations of people of Kashmir.

Kashmiri people want peaceful settlement and resolution of Kashmir issue without any bloodshed as they are witnessing bloodshed, inhuman activities on daily basis and If both the countries sincerely want to solve "Kashmir Issues" then they should come on table and start dialogue with Kashmiri people, so that this long pending issue can be solved peacefully and let peace prevail in the whole South Asian region. 

Otherwise, "Kashmir Issue" will always remain a political ground for politicians of both the countries and Kashmiri's will always suffer a lot if its not solved peacefully by both the countries.
 
Article by:Raouf Dar( Anantnag District),  This email address is being protected from spambots. You need JavaScript enabled to view it., 9906571719