DECCAN EDUCATION SOCIETY’S

NAVALMAL FIRODIYA LAW COLLEGE, PUNE

(CONSTITUTIONAL LAW OF INDIA)

CRITICAL ANALYSIS OF JAMMU AND KASHMIR

-: Submitted By: -

MISS. AKSHATA BHASKAR NETKE

CLASS – L.L.M. 1stYear, SEMESTER – I

ROLL NO: 18

-: Under the Guidance of: -

Prof. NALINI AMBAD
(2020-2021)

SAVITRIBAI PHULE PUNE UNIVERSITY, PUNE

Deccan Education Society’s

 SHRI NAVALMAL FIRODIA LAW COLLEGE, PUNE
(Permanently Affiliated to Savitribai Phule Pune University, Pune)

Ref. No. Date:

CERTIFICATE

This is to certify that, MISS. Akshata Bhaskar Netke

has worked on Longish Term Paper titled as
“CRITICAL ANALYSIS OF JAMMUAND
KASHMIR”. This Research has beensubmitted to
Deccan Education Society’s Shri. Navalma lFirodia
Law College, Pune, during LL.M. (Two Years-Choice
Based Credit Course) inthe academic year 2020-2021.

PRINCIPAL
RESEARCH GUIDE
PROF. NALINI AMBAD
PROF. NALINI AMBAD
 DECLARATION BY THE STUDENT

I, MISS. AKSHATA BHASKAR NETKE hereby declares that the work

embodied in this Longish Term Paper titled as “CRITICAL ANALYSIS OF
JAMMU AND KASHMIR ” is my own research carried out by me during LL.M.
(Two Years-Choice Based Credit Course) in academic year 2020-2021. I would
like to confirm that wherever references have been made to the contribution of
others, it has been acknowledged and accordingly indicated in footnotes and
references.
I also declare that this research has been not submitted by me or (as per
my knowledge) by anyone else for any other degree or diploma the Savitribai Phule
Pune University or in any other University.
I also declare that in case of any plagiarism, I alone will be responsible for every
loss or injury caused to my College or Research Guide and therefore I will
indemnify for the same.

Miss. AKSHATA BHASKAR NETKE Research Guide,

LL.M. 1ST YEAR, SEM- I PROF. NALINI AMBAD
Roll No. 29, 2021– 2022 (Professor)
 Acknowledgement

I undersigned express my gratitude, respect and appreciation to my research guide

Prof. Nalini Ambad and all other teaching faculty of my College for their untiring
efforts and advices coupled with in-depth knowledge and expertise in guiding me
throughout this research.
Words fail to express my gratitude to the college Principal Prof, Nalini Ambad, for
her continuous guidance and supervision. I will also acknowledge all non-teaching
staff of my Deccan Education Society’s Shri. Navalmal Firodia Law College for
their kind co-operation.
And with profound gratitude I am grateful to my class mates, friends, well-wishers
and my loving family members who directly and indirectly supported me in this
research work.

Date : Miss. Akshata Bhaskar Netke

Place: Pune Roll no. 18
LL.M. 1st, Sem I, (2021-2022)
 INDEX OF CONTENTS

Sr.no. Particulars Page

No.

1.
CHAPTER 1
INTRODUCTION TO RESEARCH STUDY
1. Introduction
2. Rational and Significance
3. Aims and objectives
4. Literature Review
5. Research Problem
6. Hypothesis
7. Research Methodology
a) Sources of Data
b) Tools of Data Collection
8. Conclusion

CHAPTER II
HISTORICAL BACKGROUND OF JAMMU AND
KASHMIR
1. TREATY OF AMRITSAR
AINSTRUMENT OF ACCESSION
a. Treaty of Amritsar
b. Instrument of Accession

CHAPTER III
INTERNATIONAL AFFAIRS
1. Role of the United Nations
2. Bilateralism
3. An Internal Matter
a. Erosion of Article 370
b. Self Determination
 c. The validity of UN Resolutions on Kashmir

CHAPTER IV
MODIFICATION OF FUNDAMENTAL RIGHTS
THROUGH CONSTITUTION OF JAMMU AND
KASHMIR

1. Permanent Residents
2. IMPACT ON THE RIGHTS OF WOMEN AND
CHILDREN
a. Rights of Women
b. Rights of Children
3. IMPACT ON THE RIGHTS OF SCHEDULED
TRIBES AND
4. IMPACT ON THE RIGHTS OF SCHEDULED
TRIBES AND SCHEDULE CASTES
5. IMPACT ON THE RIGHTS OF SCHEDULED
CASTES (SC) AND RESERVATION POLICY IN
THE STATE
6. IMPACT ON THE RIGHTS OF SCHEDULED
CASTES (SC) AND RESERVATION POLICY IN
THE STATE
7. IMPACT ON THE RIGHTS OF RELIGIOUS
MINORITIES
8. IMPACT ON THE RIGHTS OF REFUGEES AND
THEIR THIRD
a. GENERATION DECEDENTS
CHAPTER V
FACTS BEHIND THE ARTICLE 370 OF THE
INDIAN CONSTITUTION:
1. Constitutionality
2. Nature of Article 370
3. PROVISIONS OF ARTICLE 370 OF THE INDIAN
CONSTITUTION
4. EFFECTS OF ARTICLE 370 ON HUMAN RIGHTS
5. Disadvantage of Article 370
 CHAPTER VI
Conclusion

References
1. Bibliography
2. Webliography
3. Online Articles

Chapter 1

Introduction to Research Topic

2. Introduction
3. Rational and Significance
 4. Aims and objectives
5. Literature Review
6. Research Problem
7. Hypothesis
8. Research Methodology
a) Sources of data collection
b) Tools of data collection
9. Conclusion

1. Introduction

Small indeed the country may seem by the side of the great plains that extend in the south, and confined the
history of which it was the scene. And yet, just as the natural attractions of the valley have won it fame beyond
the frontiers of India, thus too the interest attaching to its history far exceeds.Jammu and Kashmir is a mountain
region at the crossroads of India, Pakistan, China, and Afghanistan. On a cartographic plane, it appears remote
and landlocked, extending for no more than ninety miles, isolated by successive ranges of the Himalayan
Mountains high above the plains of the sub-continent. The Mughals who conquered the region in 1586 called
the region Jannat—3 paradise, praising its snow-capped mountains, sunny gardens, and romantic
households.However, for more than seven decades since, the valley has become a paradise lost—its people’s
lives, entrenched in the bitter sovereignty dispute between India and Pakistan, its land—a witness to the
constant bloodshed.The question of sovereignty holds a special position in the history of Jammu and Kashmir.
Since, 1947, the region has been under the Republic of India. The relationship between both the [States]of
Jammu and Kashmir and India has been guided by the terms of accession that the monarch of Jammu and
Kashmir signed with India. This treaty of accession gave the state of Jammu and Kashmir a pseudoautonomy
over its internal affairs while ceding powers of defence, communication,and external affairs to India. However,
over time, the relationship of both states became bonded inextricably; therefore, the slow withering of the treaty
became inevitable. On 5 August 2019, the Government of India issued a presidential order under Article 370 of
the Indian constitution, and annulled the 72 years long recognition of the autonomy of the State of Jammu and
Kashmir”The same day the Republic of India passed a Bill bifurcating and reducing Jammu and Kashmir into
two separate Union Territories.According to the Republic of India, these incidentswere matters of its domestic
concerns alone. The bifurcation and reduction of Jammu and Kashmir created a huge outcry among Pakistan
and its allies. They questioned the validity of India’s actions, condemning and demanding an
immediatewithdrawal of political moves made by India in Jammu and Kashmir.There is no doubt that the
sudden change in the pseudo-autonomy of a region that was long under international observations would call
forth much attention. However, to allege that the government of India has annexed the region of Jammu and
Kashmir would be an erroneous conception of the special status that was enjoyed by the region under both
International Law and India’s constitutional framework. This article will assert that the autonomy enjoyed by
the region of Jammu and Kashmir was a provisional measure forged temporarily for the attainment of the
longer objective—Formal Accession with India. To understand this, the article will analyse the historical
aspects of Jammu and Kashmir, and the evolution of its sovereignty that has undergone a radical change over
time. It will discuss UN interventions and the subsequent impasse situation that existed between India and
Pakistan for the claim over Jammu and Kashmir, and the slow erosion of Article 370 of India’s constitution that
granted the pseudo-autonomy to Jammu and Kashmir. The incidents before and after abrogation and bifurcation
will be examined to endeavourthe justification of formal accession under International Law, and will vindicate
all the allegations condemning the Republic of India.

2. Rational and Significance

According to Article 370, ethically, morally and politically law demands that there should be only one
book of Constitution for the whole nation. Democracy and sovereignty in the territory should be the
absolute power of the Country. Furthermore, any modification, deletion or amendment in the
Constitution of India by the legislative assembly is the application to everyone but as per the
recommendations of Article 370, the State of J & K will decide the implication of such amendments,
modification, or deletion.

3. Aims and Objectives

1. To have knowledge about historical background of J&k.

2. To study the impact of Indian economy
3. To study the International Affairs with J&k
4. To know about Sovereignty of J&K
5. To explain the cases related to J&k
6. To study Article 370.
7. To study the impact of Article 377.
8. To understand importance of J&K.
9. Impact of Women and Children 8

4. LITERATURE REVIEW
1. Online Article on A Critical Analysis and possible solutions.

2. Article 370 and the Current situation : A Critical Analysis

 3. Article 370: What happened with Kashmir and why it matters . BBC News

5. RESEARCH PROBLEM
Due to Article 370 many Advantages has been granted to the people of Jammu and Kashmir. The Women
and Children got equal Rights. CIVIL RIGHTS, MINORITY RIGHTS. EMPLOYMENT RIGHTS,
FREEDOM OF MOVEMENT, POLITICAL RIGHTS, BACKWARD CLASSES.

7. RESEARCH METHODOLOGY

A. SOURCESE OF DATA COLLECTION

a) Primary sources

b) Secondary sources

In this paper, researcher will use primary and secondary sources of data collection. Researcher will go
through judgements, textbooks, articles, reference books and online available material to collect the data.

B. TOOLS OF DATA COLLECTION

Researcher has used textbooks, articles, reference books and websites for collections of data.

C. RESEARCH MODULE
I. Explicative

Explicative process tries to ascertain the nature, scope and sources of law in order to
explain what law is and also to spell out the several provisions, parts, facts of law and
legal system. Here the research has explained the various articles of Crtical Analysis of Jammu and Kashmir.

II. Exploratory

It is used for understanding the basis for clarifying concepts, establishing priorities for
future research. This model will be used for explaining the concepts of Jammu and Kashmir.

III. Critical Analysis

In research, the researcher studies the present law and the present needs of society and finds out the defects in
existing law. He has to make concrete suggestions based upon the evaluation. In this research the case laws
related to socialism will be analyzed.

8. Conclusion
To conclude the first chapter of this research i.e., the introductory chapter of research topic,
the researcher wants to tell that the researcher studied this research area and conducted the
research in this particular topic. The researcher while doing this research first found the
significance of this specific study and then after the researcher has gone through various
literatures available for this topic. Then the researcher by using tools in research
methodology conducted this research.

CHAPTER II:-

HISTORICAL BACKGROUND OF JAMMU AND KASHMIR

1. TREATY OF AMRITSAR
 2. INSTRUMENT OF ACCESSION

A. Treaty of Amritsar
B. Instrument of Accession

CONCLUSION

Sovereignty is a political concept that refers to dominant power or supreme authority. Historically the
[Regions]of Jammu and Kashmir have witnessed a multitude of struggles between civilizations attempting to
establish a sovereign regime—but none were strong enough to retain the mountain lands without fear of
external intervention. The history of Jammu and Kashmir, for this article, has been divided into two stages: the
Treaty of Amritsar, and the Instrument of Accession stage. Both these stages carry preeminent importance for
its present status.

_____________________________________

Online Article on A Critical Analysis and possible solutions.

CHAPTER III

INTERNATIONAL AFFAIRS

1. Role of the United Nations

2. Bilateralism
3. An Internal Matter
Erosion of Article 370
 b. Self Determination
c. The validity of UN Resolutions on Kashmir

Conclusion

The issue of Kashmir was internationalized even before it was submitted under the UN—while accepting the
instrument of accession from Maharaja Hari Singh. The Maharaja wrote that once the invading forces had been
expelled and law and order restored, the accession should be ratified by “a reference to the people.” Similarly,
on November 2, 1947, Nehru, as the first Prime Minister of India, drew the attention of the world nations by
declaring the Indian Government’s pledges to the People of Kashmir and to the world that it would conduct a
referendum under international auspices such as the UN.

Role of the United Nations

Although India was (and is) a member of international organizations such as the League of Nations and the
United Nations, it was not regarded as a sovereign state under the General International Law while its internal
and external relations were dependant on the British Government and Parliament. Only with the coming into
force of the Indian Independence Act, 1947 India could finally become a full-fledged member of the
International Community. Within months of its membership to the UN, India brought the issue of Kashmir
before UN Security Council and alleged that Pakistan had assisted in the invasion of Kashmir by providing
military equipment, training, and supplies to the Pathan warriors. Pakistan denied these allegations, and in turn,
accused India of their involvement in the massacre of Muslims in Kashmir, aggression against Pakistan, and
questioned the validity of the Maharaja’s accession to India.

_________________________________________

Online Article on A Critical Analysis and possible solutions.

Pakistan further requested the Security Council to appoint a commission to secure a cease-fire and to ensure the
withdrawal of outside forces, along with conducting a plebiscite for determining Kashmir’s future. Thereafter,
the Security Council (without addressing the initial issue of Kashmir) adopted a resolution establishing the
United Nations Commission on India and Pakistan (UNCIP).The purpose of the Commission was to make
findings of fact according to Article and to act as a mediating influence. The UN also issued a resolution for the
self-determination of Kashmir and to conduct a plebiscite. The resolution put forward the retreat of both
Pakistan and Indian troops from Kashmir. However, as both the parties feared that a retreat would lead to a
strategic advantage to the other, troops from both States were stationed before the UNCIP even reached
Kashmir, a complete disregard for the proposed resolution. After taking into view the prevailing conditions, the
UNCIP proposed a significant resolution which provided for three essential steps in sequential order. First, they
stipulated that Pakistan must withdraw all its forces and tribesmen from Jammu and Kashmir and assist in
creating conditions for the people to express their choice without fear or intimidation of Pakistani presence in
the region. After this, only then would the Government of India conditionally take steps to gradually withdraw
its forces (India would be allowed to retain adequate troops for law and order to meet against external threats).
Finally, after satisfying these two conditions, only then would the Government of India, with its machinery,
then be responsible for conducting a fair and free plebiscite under UN supervision for the entire State of Jammu
and Kashmir. Pakistan rejected this resolution as it did not suit its interest in occupying Jammu and Kashmir by
force and subterfuge. Instead, Pakistan further engaged in stationing its troop illegally in areas it already
occupied, augmented its strength by signing deals with China and bartered away portions of its occupation,
consequently changing the demographic pattern in areas like Gilgit Baltistan and Pakistan-occupied-Kashmir.
In 1949 a cease-fire line was drawn, and the commission eventually disbanded in favour of individual
representatives. Until today, a plebiscite has not been achieved even after the frequent renewal of UN security
resolutions.

An Internal Matter?

As claimed by India, the issue of Jammu and Kashmir has always been a matter of its domestic concern.
However, this was not always the case. While it is true that the region of Jammu and Kashmir has become a
part of India, this owes much to the slow erosion of Article 370, and the incidents prior and after the
presidential rule in the territory. To discuss, the following section will be divided into two: (1) The erosion of
Article 370, and (2) The division of the region into The Union Territory of Jammu and Kashmir, and The Union
Territory of Ladakh. It will deal with the dawdling merger of the region with India and discuss the present
status of the territory

-______ Online Article on A Critical Analysis and possible solutions__________________________________

Erosion of Article 370

Between May 1947 and August 15, 1947, almost all the princely states signed the instrument of accession with
either India or Pakistan (whether by pressure or for diplomacy). Kashmir was not much different. However,
when Maharaja Hari Singh conceded the sovereignty of Jammu and Kashmir to India, the terms of the treaty
provided the concession only with regards to foreign affairs, defence, currency, and communication. In March
1948, Maharaja appointed an interim government in the State with Sheikh Abdullah as prime minister,69 and
tasked to frame a constitution for the State. At the same time, the government of India was preparing its
constitution.70As part of this process, the princely states were invited to send their representatives to India’s
constituent assembly, and Sheikh Abdullah and his colleagues joined the Indian constituent assembly as
members in May 1949. Over the next five months, they negotiated Kashmir’s future relationship with India.
Accordingly, a conclusion was reached to only incorporate the provisions in the Constitution of Kashmir that
adhered to the original instruments of accession. It was also decided that Kashmir’s constituting assembly when
formed, would decide all other matters. Based on the meetings convened, when India’s Constitution was
adopted in 1949, Kashmir was given a special status under Article 370 of India. Article 370 stipulates that other
articles that give power to the central government would be applied to Jammu and Kashmir, only with the
concurrence of the State’s constituent assembly. Article 370 was a temporary provision in the sense that its
applicability was intended to last only until the formulation and adoption of Jammu and Kashmir’s constitution.
However, in 1956, the constituent assembly of Jammu and Kashmir dissolved itself without making further
recommendations on either the adoption or abrogation of Article 370, thereby leaving an indelible imprint on
the Indian constitution. Article 370 records a “solemn compact”72 protecting the rights of the 1947 instrument
of accession.

69Khandelwal, Pledge for an Integrated India, 252.

70 Bose, Contested Lands, 187.

71Rahul Tripathi, “Instrument of accession: from 1947 till date,” Economic Times. Ac-cessed January20,2020,https://economictimes.indiatimes.com/news/politics-andnation/instrument-of-

accession-from-1947-till-date/articleshow/70546147.cms?from=mdr.

Article 370 provided the state of Jammu and Kashmir with the autonomy of governance inside its region.
However, some laws in Jammu and Kashmir could be considered as misogynistic and violative under jus
cogens. An example of such a law is that a Kashmiri woman loses her rights to property in Kashmir when she
marries an outsider.73 Thus, in respecting Jammu and Kashmir’s sovereignty under Article 370, India was to
overlook the gross violations of gender equality and human rights. In light of this, the gradual erosion of Article
370, was inevitable both for the sake of respecting human rights, and to extend the principles of gender equality
that was part and parcel of the Indian Constitution.74When Article 370 was originally made, only two articles
of the Indian constitution applied to the state of Jammu and Kashmir. All the other provisions of the Indian
Constitution were applied, with modifications and exceptions stipulated by the President of India.75 The first of
such order was the presidential order of 1950, officially known as The Constitution (Application to Jammu and
Kashmir) Order, 1950. It specified the subjects and articles of the Indian constitution which

72 A. G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir, 1.

73 Jill Cottrell, “Kashmir: The vanishing autonomy”, in Practicing Self Governments:

A Comparative Study Of Autonomous Regions, edited by Ghai and Woodman (Cambridge: Cambridge University Press, 2013), 163-199; (“The landmark Declaration, adopted by the General

Assembly on 10 December 1948, reaffirms that “All human beings are born free and equal in dignity and rights” and that “everyone is entitled to all the rights and freedoms set forth in this

Declaration, without distinction of any kind, such as race, colour, sex, language, religion, … birth or other status.”) “Gender equality,” United Nations, https://www.un.org/en/sections/issues-

depth/gender-equality/.

74 Article 370 was an elixir for the Jammu and Kashmir Constitution; it gave the legislature an apparent power to modify application of any laws passed by the Centre. Thus, it was both in good

faith and for the welfare of the under privileged there, the abrasion was inevitable.; “Full text of document on govt’s rational behind removal of special status to JandK,” The Hindu, accessed

February 28, 2020, https://www.thehindu.com/news/national/full-text-of-document-on-govts-rationale-behind-removal-of-special-status-to-jk/arti-cle28821368.ece.

75 Bodh Raj Sharma, “The Special Position of Jammu and Kashmir in the Indian constitution,” The Indian Journal Of Political Science 19, no. 3 (1958): 284.
was consistent with the Instrument of Accession.76 The second order was passed in 1952 that amended Article
370 by replacing the phrase “Maharaja of Jammu and Kashmir” to the “Legislative Assembly of the State as the
Sadr-i-Riyasat.”77 This was a symbolic step in the history of Jammu and Kashmir as it led to the further
abolition of the monarchy in the state. In 1954, the third presidential order came into force. It was a
comprehensive agreement seeking to implement the 1952 Delhi agreement.78Accordingly, fundamental rights
under the Indian Constitution were extended to Jammu and Kashmir with some modifications and reservations.
Simultaneously, Article 35A was also added to the constitution. This was added per the presidential order of
1954 and empowered the state government to legislate on privileges of permanent residents concerning aspects
of immovable property, settlement in the state, and employment.79

In addition to these original orders, 47 other presidential orders were made between 1956 and 1994, making
various other provisions in the Constitution of India that became applicable to Jammu and Kashmir. These
orders were issued with concurrence with the government of the Jammu and Kashmir and not that of the
dissolved constituent assembly. This practice of applying for the presidential order in concurrence with the state
government became a customary practice as it was deemed that no other body in the state was competent to
give assent.80 It is noteworthy, that among these 47 orders made, some of the presidential orders were issued
while the state was under the President’s rule and without the concurrence of a state government.81These
incidents of the application of presidential orders in the state of Jammu and Kashmir evidenced that Article 370
was already in the process of erosion and was made more obvious when in 1963, Nehru said in a parliamentary
debate, that:

Kashmir’s autonomy has been eroded… and many new things have been in the last few years… which has
made the relation of Kashmir with union of India very close… So, we feel that this process of erosion of Article
370 [that] is going on… we should allow it to go on.82

__
 _______________________________________________________________________________________

76 “Constitution Application Orders,” Jammu and Kashmir Law, accessed March 15, 2020, http://jklaw.nic.in/jk1950order.pdf

77 “Constitution (Application to Jammu and Kashmir) Order 1950,” Jammu and Kashmir Law, accessed March 16, 2020, http://jklaw.nic.in/jk1950order.pdf.

78 Arguably, it went further than the Delhi Agreement in some respects. Ghai and Woodman, Practicing self government, 171–172.

79 Mohan KrishenTeng, State Government and Politics, Jammu and Kashmir (Michigan: University of Michigan, 2007), 68-119.

80 A. G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir, 9-11.

81 Ghai and Woodman, Practicing self governments, 173–175.

82 Lok Sabha debates, vol XII, 27 NOV 1963, cols. 1231-32

On 5 August 2019, the Home Minister Amit Shah of India, announced in the upper house of the Parliament of
India that the President of India had issued the Constitution (Application to Jammu and Kashmir) Order, 2019
(C.O. 272), and thereby, the Constitution (Application to Jammu and Kashmir) Order, 1954 stands overridden.
It was a historical move from India’s part, allowing the Constitution of India to be made applicable to the whole
of Jammu and Kashmir without any restrictions. This order was made by the President of India with the
“concurrence of the government of the state,” and the “governor appointed by the Union government.”83 The
presidential order, 2019 also added clause 4 to the four sub-clauses of Article 367 of the Indian constitution,
thereby adding the interpretation of state government to include the governor.84 This was in adherence to the
prevailing state practices, since some of The presidential orders issued after 1954 when the state was under
presidential rule was made applicable through the concurrence of the governor of the state and not the state
government.85 After the passing of the presidential order, 2019 before the Rajyasabha, the government,
through a resolution passed, issued a constitutional order which replaced the original text of Article 370 with a
new text that allowed the amendment of the Article.86 On the same day, a bill was introduced in the parliament,
the Jammu Kashmir Reorganization Bill, 2019. The bill intends to convert the State of Jammu and Kashmir into
two separate territories, namely, Union Territory of Jammu and Kashmir, and the Union Territory of Ladakh.87
The Bill was passed by both houses of the parliament and the Union Territory of Jammu and Kashmir, and the
Union Territory of Ladakh came into being on October 31, 2019, thereafter known as the National Unity Day of
India.88

CHAPTER IV

1. Permanent Residents
2. IMPACT ON THE RIGHTS OF WOMEN AND CHILDREN
a. Rights of Women
b. Rights of Children
 4. IMPACT ON THE RIGHTS OF SCHEDULED TRIBES AND
5. IMPACT ON THE RIGHTS OF SCHEDULED TRIBES AND SCHEDULE CASTES
6. IMPACT ON THE RIGHTS OF SCHEDULED CASTES (SC) AND
7. RESERVATION POLICY IN THE STATE
8. IMPACT ON THE RIGHTS OF SCHEDULED CASTES (SC) AND RESERVATION POLICY IN
THE STATE
9. IMPACT ON THE RIGHTS OF RELIGIOUS MINORITIES
10. IMPACT ON THE RIGHTS OF REFUGEES AND THEIR THIRD
a. GENERATION DECEDENTS

MODIFICATIONSOF FUNDAMENTAL RIGHTS THROUGH CONSTITUTION OF

J&K30

Not even a single additional right has been given in the fundamental rights chapter of this constitution. Section
10, which provides fundamental rights in the state provides as thus; “10. Rights of the permanent residents:-The
permanent, residents of the State shall have all the rights guaranteed to them under the Constitution of India.
”This provision clearly shows that only permanent residents of the state will have all fundamental rights in the
state; citizens of other parts of India have no ensured fundamental rights in the state. Further, this section says
that all the rights guaranteed in the constitution of India will be given, means no additional fundamental right.
Here an appropriate question is that if people of the state have not been given any additional right and
fundamental rights given by the constitution of India also applies in limited aspect in the state due constitutional
order of 1954, then how this separate constitution is useful for the people of the state?

1. IMPACT ON THE RIGHTS OF WOMEN AND CHILDREN

In J&K marginalized groups of society such as women, religious minorities, backward and depressed
classes do not have special rights; rather, in some cases they do not have even equal rights.

a. RIGHTS OF WOMEN

In J&K women do not have equal rights. Especially in the laws related to state subject women of the state do
not have equal rights. 32
These laws are motivated by medieval thinking, and are based on the patriarchal
society. These laws are based on notifications of 192733 and 193234 which define different classes of sate
subjects, but in these notifications no where it is mentioned that women will have less rights. It is only through
some shrewd administrative manipulation that domicile certificates of women were started being stamped as
‘valid only till marriage’, then after marriage women had to apply again for the domicile certificate. And if they
had married to some outsider then they were not given state subject certificate. By implication, these women
automatically lost their several rights such as - acquiring property in the state, applying for state services, voting
rights and the right to contest elections for the legislative assembly.

b. RIGHTS OF CHILDREN

In state of J&K even fundamental rights of children are not protected .Article 21A provides right to education
as a fundamental right for all children of India. But the state of Jammu and Kashmir has not extended right to
education to the state. The Right of Children to Free and Compulsory Education Act 2009 is applicable to the
whole of India except the state of Jammu and Kashmir. And state government has not made any equally
comprehensive law for the children in the state. Though DPSP of state constitution speak about free education
up to university level, but in the absence of any act of compulsory education; hence, state government is under
no duty to ensure education for all.

IMPACT ON THE RIGHTS OF SCHEDULED TRIBES AND SCHEDULE CASTES

It is important to analyse that whether article 370 has some impact on the rights of S.C.s and SIMPACT ON
THE RIGHTS OF SCHEDULED TRIBES. Schedules tribes are those communities who are living in
geographically secluded areas since time immemorial. They have developed a unique lifestyle. To preserve
their lifestyle and for their advancement Constitution of India has given them some rights. Tribal communities,
like Gujjar, Bakarwal, Pahadi, Bot, Balti, Barokpa and Gaddi etc., which are primarily nomadsare constantly
struggling to protect their lifestyle and habitat in the absence of any law for their protection in J&K. The
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is applicable
in whole India except the state of Jammu and Kashmir. And the government of the state has not made any such
corresponding laws in the state. There is nothing to insure even these inherent rights of tribal communities in
J&K, because the National Commission for Scheduled Tribes has no jurisdiction in the state and state itself has
not provided for any such commission with similar powers. It seems that government of J&K is concerned only
about Kashmiri identity, and it wants to destroy all other identities in the state.
 CHAPTER V

FACTS BEHIND THE ARTICLE 370 OF THE INDIAN CONSTITUTION:

1. Constitutionality
2. Nature of Article 370
3. PROVISIONS OF ARTICLE 370 OF THE INDIAN CONSTITUTION
4. EFFECTS OF ARTICLE 370 ON HUMAN RIGHTS
 5. Disadvantage of Article 370

FACTS BEHIND THE ARTICLE 370 OF THE INDIAN CONSTITUTION:

1. Article 370 of the Indian Constitution is the temporary and special provision accorded for the state of Jammu
and Kashmir.

2. The principal drafter of the constitution of India refused to frame the Article 370 because this article was
unconstitutional according to him.

3. Sheikh Abdullah was instructed by Nehru to work on this Article under the supervision of the B.R
Ambedkar.

But eventually, it was drafted by GopalaswamiAyyangar.

4. At the time of collective princely states were reorganised provisions of the omitted Article 238 did not apply
to the State of Jammu and Kashmir.

5. Article 370 is drafter under Part XXI „the Temporary and Transitional Provision‟ of the Constitution of
India.

6. The Instrument of accession is the original draft of the Article 370 and under that it was defined that "the
Government of the State means 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 fifth day of March 1948.

7. As per this draft before taking any important steps parliament has to look for the concurrence of the
Government of the state.

8. Parliament of India cannot reduce or exceed the borders of the state.

9. Article 370 was renumbered at the place to Article 306A of the Indian Constitution.

10. Non-residents do not have permission to transect the land deals in the Jurisdiction of the J & K as provided
under Article 370.

11. The Union cannot interfere in the provision provided in the Constitution of Jammu and Kashmir.

EFFECTS OF ARTICLE 370 ON HUMAN RIGHTS

Under the cover of Article 370 many human rights are being trashed and tampered. Human rights are for the
welfare of the society and should be awarded to every citizen of India irrespective of their caste, colour, race,
gender or creed. Under the ambit of Article 370 state govt. of the valley failed to protect the basic rights of the
residents of Jammu and Kashmir. discrimination with backward people, women who cannot marry outside the
state to protect their property rights, right to education of children etc. are not protected under the constitution
of Jammu and Kashmir.

DISADVANTAGES OF ARTICLE 370:

There is no private hospital in the vicinity of the adjoining district of Jammu and Kashmir. Lack of essentials in
the state such as water supply, electricity supply, or fast speed internets. There is no competition among
students who lacks their mental growth and development. This lacks the progress of the youth mentally. The
Youth of Jammu and Kashmir do not have the right to crack other state exams. There is no industrial growth or
development because no company has the right to buy land in the valley. The permanent residents of the state
have property rights only. Shariah laws are profiling to the women of the state. The Indian government cannot
access its powers without the concurrence of the state government. Hence, they cannot implement any law or
policy on the state.

CHAPER VI

CONCLUSION
The government’s action is, from a legal standpoint. But it is perhaps a bit too clever as the abrogation of
Article 370 was a historical promise. Prime Minister Nehru himself agreed that Article 370 would be rendered
obsolete by the passage of time.

The abrogation move may bolster the government’s ability to make the fruits of India’s economic progress
directly available to Kashmir. Yet, the manner in which this has been done is unlikely to inspire trust in the
ordinary Kashmir and may well cause lasting damage to the tradition of constitutional propriety.
I wish to state that any act no matter how righteous when done in violation of the principles of the Constitution
is an act of constitutional impropriety and liable to be quashed. The words of Justice
Mittar in Maharajadhiraja Madhav Rao v. Union of India, squarely apply to the present controversy.

The Hon’ble Judge opined that:

‘Breach of any of the Constitutional provisions even if made to further a popular cause is bound to be a
dangerous precedent. Disrespect to, the Constitution is bound to be broadened from precedent to precedent and
before long the entire Constitution may be treated with contempt and held up to ridicule. That is what happened
to the Weimar, Constitution.’

In sum, a purported process to change the constitutional status of a sensitive border State has been achieved
without any legislative input or representative contribution from its people. The bifurcation of States in the past
cannot be cited as a binding precedent as, under Article 3 of the Constitution, the President seeks the views of
the legislature of the States concerned, even if concurrence is not mandatory.

In the present scenario, J&K has been represented by an unelected Governor appointed by the Centre, while
Parliament has ventured to ratify the conversion of a State into two Union Territories without any
recommendation from the State.

Geographically and metaphorically, Jammu and Kashmir is the crown of secular India — a Muslim majority
region in a Hindu majority country. Its people and leaders had chosen secular India over Islamic Pakistan, a fact
that Islamists never reconciled with

Today, let us just take time out to read what Jayaprakash Narayan had to say in 1966 about Kashmir, “If we
continue to rule by force and suppress these people and crush them or change the racial or religious character
of their state by colonization, or by any other means, then I think that means politically a most obnoxious thing
to do.”

Rajdeep Sardesai also has an interesting take on the whole issue, “Societies move ahead by instilling hope and
confidence in its citizens, not by spreading fear and uncertainty. And genuine change never comes at gunpoint
but through reforming hearts and minds.”

True, the special status of J&K was meant to end, but only with the concurrence of its people. The Centre’s
abrupt move disenfranchised them on a matter that directly affected their life and sentiments. Moreover, this
was done after a massive military build-up and the house arrest of senior political leaders, and the
communications shutdown reveals a cynical disregard of democratic norms.

REFERANCES.

(i) Bibliography

(ii) Webliography

(iii) Online articles

Respected Ma’am,

The researcher has submitted the proposal of the longish term paper on the above-mentioned topic. There were
various changes made in above mentioned topic by the researcher and researcher guide. After that researcher
has shown rational significance and with that research problem, aims and objectives of the above-mentioned
topic. Further the research has shown chapters, the proposal to prove or disprove the hypothesis and the
proposal got approved. In this first progress report the researcher seeks to disclose the progress made during
given time.

Throughout the given time the researcher used various sources for collection of data required for his doctrinal
research. The research has also gone through some books associated with the research topic. The researcher has
also made on an honest endeavour to have access to the access to the current and recent data available on
web(internet). Various magazines and journals were referred to collect relevant articles. After having sufficient
data at the disposal, the researcher has completed the proposal of the longish term paper and also submitted to
you.

The researcher has gone through the following books, articles and websites and collected necessary data to
prepare the draft of proposal of longish term paper.

Articles Referred:

1. Online Article on A Critical Analysis and possible solutions.

2. Article 370 and the Current situation : A Critical Analysis

3. Article 370: What happened with Kashmir and why it matters . BBC News

Remark: Submitted by
Akshata Netke