Adv Sumer Khajuria
Ekamata Diwas or Solidarity Day for complete integration of Jammu and Kashmir State, as stood on 15th August 1947 with rest of the Indian Republic was dreamed by great martyr, Dr Syama Prasad Mookerjee. Accomplishment of his slogan Ek Nishan Ek Pradhan and Ek Vidhan is being celebrated across the country every year on 5th day of August. It was on 5th day of August 2019, the President of India, by superseding the previous, ‘The Constitution (Application to Jammu and Kashmir) order dated 14th May, 1954 had issued The Constitution (Application to Jammu and Kashmir) Order 2019, thereby the entire provisions of the Constitution of India,updated by incorporation of all amendments made till such date were brought into operation in the State of Jammu and Kashmir with immediate effect. The second development of the said auspicious day was that Narendra Modi Government placed before the Parliament a resolution for abrogation of all controversial provisions of the temporary and transitional Article 370 besides a bill titled Jammu and Kashmir State Reorganization Bill of 2019. Both these two matters including the order of the President of India extending the entire Constitution of India came in healthy debate on 5th August 2019 before the Rajya Sabha and on 6th August 2019 before the Lok Sabha, finally passed by the Parliament with the requisite majority. Consequently the President of India upon the recommendations of the Parliament expunged the all controversial provisions of Article 370 by recasting the same issued such order on 6th August 2019 besides the Jammu and Kashmir Reorganization Act 34 of 2019 came into being with appointed day of operation on 31st October 2019.
The aforesaid steps were felt necessitated in the face of the failure of the Constituent Assembly of Jammu and Kashmir to act according to the provisions of Article 370(3) proviso 3 below it to decide whether the provisions of such Article being temporary and transitional were to be continued or not,especially when such provisions were being abused not for the welfare of the public in large of the state of Jammu and Kashmir but for encouraging sectarian , secessionist and anti nationalist activities.
It may be noted that a purely temporary and transitional provision of Article 306A remembered as Article 370 was inducted by the Constituent Assembly of India at the last leg of constitution making process on 17th October 1949 with an express assurance of the presenter N Gopalaswamy the then Union Minister without portfolio acting under influence of Pt Nehru (when the concerned Home Minister or Law Minister refused to be party to it) that the said provisions shall come to an end after normalization of the conditions of Jammu and Kashmir State an due deliberations by its proposed constituent assembly. Despite supporting demand of the abrogation of Article 370 by all six Members of Lok Sabha in 1964 on a private Bill moved by Sayavir Shastry and tactical conspiracy hatched to defeat the private bill of Atal Bihari Bihari Vajpayee in 1971, the destiny of the people of Jammu and Kashmir remained hanging in balance for the last seven decades.
Further with the cunning intent of the persons sitting at the helm of Affairs of the Jammu and Kashmir state succeeded in getting inducted a very dangerous with sectarian provisions Article 35A in the Constitution as applicable for the State of Jammu and Kashmir and that too at the back of the sovereign Parliament process, by means of the issuance of the President’s order, the Constitution (Application to Jammu and Kashmir) order 1954 dated 14th May 1954 .Further by abusing such provision and casting section 6 of the Constitution of the Jammu and Kashmir relating to the Permanent Residence Certificate in case of person desiring to acquire immovable property and settle in this state or to seek employment in the state. The available relaxation so granted by the Maharaja being fountain head of the state by means of ‘Riyiatnama or Izajatnama’ vide notification No. 13/L dated 27th June 1932, enabling to invite non-permanent residents of the state for the development of the state was also expunged. In contrary to it, a provision of resettlement of state origin Pakistanis in the state by restoration of their left properties was assured by nakedly abuse.
More shocking state of such controversial provisions of section 6 of the Constitution was that in case of non state subjects its effect was given since 14th May 1944 but in case of Pakistanis they could be settled even they left state in 1954. Although by means of the Instrument of Accession of the state of Jammu and Kashmir by its fountain head Maharaja Hari Singh had surrendered the sovereignty of the state before the Union of India since 26th October 1947 and attained the subordinate status under the Indian Republic, but the Jammu and Kashmir Constituent Assembly, either its formation or its functioning went in contrary to the spirit of Indian Constitution, also well defined by the Appex court in case of state Bank of India Vs Santosh Gupta and Others AIR2017 SC 25.
The consequences of such controversial provisions of Article 370,and 35A read with the provisions of section 6of the Constitution of the Jammu and Kashmir state was that the daughters of permanent residents of the state marrying outside the state were being denied the right to either serve or acquire any immovable property in this state likewise the male members with their spouse and children. The west Pakistani displaced persons residing in the State of Jammu and Kashmir for the last seven decades, Gurkhas of Army settled in the state for over seven decades, Valmiki Samaj brought in Jammu from Punjab by the state Govt for scavenge purpose were being forced to work only as sweepers besides further conspiracies were being played even to stall the industrialisation of the state by leasing out lands to non state subjects, Insurance Companies Banking institutions and corporate bodies. However, the impact of enforcement of entire Constitution of India and carving out two Union Territories of Jammu and Kashmir as well as of Ladakh region is observed to be very vita, e.g. changes in politics and bureaucracy of region, priorities of counterinsurgency operations, new domicile rules and declination in stone pelting incidents among others.
On the issue of legislations and enactments, the consequence of the enforcement of the Jammu and Kashmir Reorganization Act 34 of 2019,with effect from 31st October 2019, the subsisting 153 Acts of the erstwhile State of Jammu and Kashmir besides 11 Acts enforced by the Governor of the Jammu and Kashmir have been repealed in Toto. In their place 106 Acts of the Union of India have been enforced in the both Union territories of Jammu and Kashmir and Ladakh since 31st October 2019 The net result is that the West Pakistan displaced persons, Gorkhas staying since 1947 Bamiki Samaj, the daughters of the permanent residents of the state married outside of the state with their spouse and children if settled in the Union territories have been extended the full citizenship rights i.e., to acquire properties, right services, rights to vote and contest elections at all levels. The state subjects settled in other parts of county are also duly protected for their rights of citizens as an when they choose to settle here.
The Jammu and Kashmir Reorganization Act 2019 provides for the Delimitation of the seats in the Jammu and Kashmir with enhancement of Assembly seats from 83 to 90 having been stalled till 2026 census creating a long gap of 50 years, Enforcement of Minority Commission in Jammu and Kashmir thereby entitlement of Minority to true eligible instead extending such benefits to muslims of the state despite being in majority, education benefits to children teachers, Adhar targeted Delivery of financial and other subsidies, benefits, Constitution of Administrative Tribunal restrictions on Benjamin property to keep check on corrupt practices, Disturbed Area special courts, Delimitation Act 2002 bring applicable to Jammu and Kashmir, right to fair compensation in case of acquisition of lands by the Government, including rehabilitation and settlement of such persons deprived of their lands apart from benefits of number of centrally sponsored schemes. The scheduled Tribes have been provided with benefits of reservation of seats in Jammu and Kashmir. Safari karacharies have been provided protection from the forced scavenging job manually, rights for scheduled tribes and other forest dwellers etc. The Hindu Special Marriages Act, Indian Christians Marriage Act, Maintenance and welfare of parents and Senior citizens Act Muslim women protection of rights on divorce, National Commission for Safaikaramcharis Act have also been extended as social welfare schemes.