The Kashmir

October 6, 2009

CONSTITUTION & POSSIBILTY OF CREATION OF PANUN KASHMIR


CONSTITUTION & POSSIBILTY OF CREATION OF PANUN KASHMIR 

Continuing with the discussion of what the constitution says about creation of a separate state /union territory , I would touch the few specific points available in constitution of India , J&K and under article 370.

What does the Constitution of India say ?

According to the constitution of India and its first schedule,the The territory of India shall comprise:

The territories of the States The Union territories specified in the First Schedule; and such other territories as may be acquired. In the article 2 , it states that Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit.

In the article 3 it states that Parliament by law may form a new State by separation of territory from any State .

In the above context the law is clear that a new state formation is possible by a law passed by the parliament.

Possibilities according to constitution of J&K and the role of SADAR -E-RIYASAT

Under Article 370 , any changes to be bought should be passed by the J&K assembly. Where does that lead us ?

The answer does not stop just here.Firstly we must understand that Article 370 is a temporary provisions with respect to the State of Jammu and Kashmir. Moreover there have been many contradictions itself within the constitution, according to my understanding, unless i am being made to understand otherwise.

The constitution of J&K recognise the heading officials as “Sadar-E-Riyasat “( President) & “Wazir-E-Azam” (Prime Minister),the terms which have now been abolished but may still be reflecting in the constitution.

The Constitution of J&K says the qualification of the “Sadar -e _riyasat ” has to be following :-

The Sadar-i-Riyasat shall be the person who for the time being is recognised by the President as such:

Provided that no person shall be so recognised unless he:

(a) is a permanent resident of the state;

(b) is not less than twenty-five years of age; and

(c) has been elected as Sadar-i-Riyasat by a majority of the total membership of the Legislative Assembly in the manner set out in the First Schedule.

In the present case I do not feel that the Governor (Sadar-E-Riyasat ) is any longer required to be a resident of the state ,and no longer requires an approval from legislative assembly. The reason I am discussing the role of the Governor is because the Governor of J&K has many powers which can alter the future of J&K state.

The constitution states that the Governor ,except in few matters can not bring in a rule unless approved by the legislative assemble of J&K by 2/3rd majority. However at the same time the constitution states that the constitution make such incidental and consequential provisions as appear to the Sadar-i–Riyasat to be necessary or desirable for giving effect to the objects of the Procla-mation, including provisions for suspen-ding in whole or in part the operation of any provision of this Constitution rela-ting to any body or authority in the State :

The rule can easily be surpassed by will of the central Government by invoking Article 356 and 357 of the Indian Constitution which was extended J&K in 1964, giving emergency powers to the President in the event of the failure of the Constitutional machinery .

The authority of the Governor or Sadar -E Riyasat can not be challenged in court as the law states in act 143 that :

143. (1) The Sadar-i-Riyasat shall not be answerable to any court for the exercise of performance of the powers and duties of his office or for any act done or purposing to be done by him in the exercise and performance of those -powers and duties , and in part 2 it states that

2) No criminal proceedings whatsoever shall be instituted or continued against the Sadar-I–Riyasat in any court during his term of office. No process for the arrest or imprisonment of the Sadar-i-Riyasat shall issue from any court during his term of office.

WHAT DOES THAT MEAN FOR PANUN KASHMIR

We all should understand that a strong Government is required at Centre ,capable of taking strong decision in national interest.

The Public awareness has to be created to make the nation understand the necessity of a separate Union Territory.

Good Friends have to be made across all Political Parties.

WOULD CONSENT FROM ALL NATIONAL POLITICAL PARTIES MAKE PANUN KASHMIR POSSICBLE.

Not necessarily. Considering the case of Telangana case of right for statehood, all Political parties with the exception of Congress(I),have given their formal support.

Even in last election the Congress promised the separate Telangana state and its ally was TRRS.

WHAT IS THE ROLE OF SUPREME COURT OF INDIA

According to my understanding the Supreme court can play a BIG BIG role in affairs of J&K. Maybe as I said the political will is needed.

Any legislation can be stuck down by Supreme court and that may include article 370 as well.

The example being In 1974, the Supreme Court of India in the landmark case of Kesavananda Bharati v. State of Kerala enunciated the Basic Structure Doctrine, which expanded the scope of judicial review to include the power to review Constitutional Amendments passed by the Legislature. Using this doctrine, the Supreme Court has struck down the 39th Amendment and parts of the 42nd Amendment as being violative of the Basic Structure of the Constitution. The doors of Supreme Court are also open for us to alter the consitution.

WHAT DOES ALL THE ABOVE TELL

1. Panun Kashmir is possible constitutionally.

2. Achieving Panun Kashmir is certainly not an easy job,neither is it easy for anyone else as well. It would be a long sustained campaign and can be achieved through our collective effort.

3.The idea of Panun Kashmir has to be sold to all Indians and each Kashmiri pandit would have a role to play.

4. Panun Kashmir has to present themselve as nationalistic rather than a Hindu right wing organisation.

Changing strategies as needed is important. We should have  more thoughtful people to be part of the Team to help us achieve the goal. Would we have a fellow soldier in you ?

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