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Created: 05 July 2018

NEW DELHI: Prof.Bhim Singh, Chief Patron of National Panthers Party & Executive Chairman of State Legal Aid Committee, J&K called on Shri Ramnath Kovind, the President of India this morning and submitted two-page memorandum urging on the President to exercise constitutional power vested in him by virtue of Clause (3) in Article 370. He strongly argued that proviso contained at the bottom of Article 370(3) has ceased after the Constitution of J&K was promulgated on January 26, 1957.

The Constituent Assembly has ceased to operate in J&K as it happened vis-à-vis the Constituent Assembly of India on January 26, 1950 when Constitution of India was promulgated. He told the President of India that people of J&K are nationalists, secular, peace-loving but have remained without the cover of Fundamental Rights which are available to every citizen of India. He said that one of the causes of the anger of the Indian citizens, particularly hailing from Kashmir province is that J&K has been denied Fundamental Rights enshrined in Chapter-III of the Indian Constitution.  

The President of India was very cordial, kind and assured that he shall take appropriate decision in this matter. The memorandum which was submitted by Prof.Bhim Singh to the President of India said that;  “I would like to express my gratitude to Your Excellency for granting me an opportunity to present my views on constitutional relationship between the Union of India and the State of J&K and what needs to be done to integrate the State of J&K in the interest of integrity of the nation.

1.         The ruler of J&K in 1947 signed the Instrument of Accession on October 26, 1947. All the state rulers at that time had signed a similar document called ‘Instrument of Accession’.

2.         That 575 states were merged as Union of India except State of J&K. Even those states which signed the Instrument of Accession after the State of J&K signed it were merged into the Union of India. State of Baroda had signed the Instrument of Accession in 1948. J&K was left out. 

3.         Article 370 was inserted into the Constitution of India which restricted the powers of the Parliament to the legislate in respect of J&K. The fact was that the Parliament was deprived of all the legislative powers vis-à-vis Jammu and Kashmir. Clause (3) of Article 370 is important to mention here;

“(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”  

4.         This is submitted that State of J&K was allowed to continue as a Monarchy under its ruler and proviso inserted in Clause (3) that, “Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.” 

5.         That State of J&K transferred all the powers of the Monarch to the elected Sadar-e-Riyasat (President of the State) in 1952 and the ruler namely, Maharaja Hari Singh was sacked and forced to quit the state.

6.         That a Constituent Assembly in J&K was constituted under the authority of the Sadar-e-Riyasat, Karan Singh (son of the Maharaja Hari Singh). The State Constituent Assembly announced State Constitution of J&K on January 26, 1957.

7.         The day J&K announced its own Constitution, the life of the State Constituent Assembly came to an end and the proviso attached with Article 370(3) lost its relevance because the State Constituent Assembly came to an end on January 26, 1957. A fresh Constitution of J&K was introduced and the old Constitution which the Maharaja had introduced in J&K in 1939 was replaced by the present Constitution of J&K.

8.         Most relevant part of constitutional development vis-à-vis Jammu and Kashmir was that J&K got its own Constitution with a commitment that J&K is an integral part of the Union of India. This has been accepted in Section 3 of J&K Constitution that, “The State of Jammu and Kashmir is and shall be an integral part of the Union of India.” There could not be any other interpretation at home or abroad.

9.         That the President of India is fully competent under the meaning and scope of Article 370(3) to make any amendment in any provision contained in Article 370. 

10.       That President of India in 1954 had inserted ‘A’ with Article 35 of the Constitution of India which vested draconian powers in the Govt. of J&K to deprive the entire State of J&K from the benefit of all fundamental rights enshrined in Chapter-III of the Constitution of India. It was done in 1954, the President of India had issued a notification which can now be withdrawn by the President. This shall give a desirable message to the citizens of India residing in J&K that Fundamental Rights contained in the Constitution of India shall be enjoyed by the citizens of India residing in J&K. 

This is respectfully submitted that the Hon’ble President of India has immense and independent powers to bring any change/modification in Article 370 of the Constitution of India at any time. This shall give a new hope and add to the inspiration of the Indian citizens residing in J&K as citizens of India that they enjoy similar/same and all Fundamental Rights enshrined in the Constitution of India in its Chapter-III. The people of J&K have remained denied of this privilege/benefit since 1950. Your Excellency, I would like to submit that I myself as the student and as a legislator (I was elected MLA of the Congress party in 1977), when I spent several years in prison for raising the voice for the implementation of all Fundamental Rights in J&K. 

Your Excellency, I would like to request that Your Excellency may invite/call some lawyers and law-makers to seek their opinions irrespective of political affiliation, on the subject. I strongly feel that people of J&K have a great faith in Indian democracy and extending all Fundamental Rights to the residents of J&K shall be a noble step. This is the time that State of J&K should be integrated with the rest of the country as was done with all the states which signed the Instrument of Accession and formed the Union of India. The people of Ladakh, Kashmir Valley and Jammu Pradesh deserve a special care and all Fundamental Rights guaranteed to the rest of the citizens in the country.”