Background Guide

Lok Sabha

RAIPUR INTERNATIONAL DIPLOMACY

COMMITTEE 2016
Agenda: 1. Reviewing Article 370
2. Armed Forces Special Powers Act
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Letter from the Executive board

Greetings Delegates,
It is indeed a great honour and a privilege to be welcoming you to the
simulation of Lok Sabha at Raipur International Diplomacy Summit 2016.
Both the agenda at hand that is vast and complex, and a successful
discussion on it would necessitate the mutual participation of all of
you.This agenda demands to be seen from more than one perspective.It
shall be your choice to decide the direction in which you want to take this
committee ahead.
A few aspects that delegates should keep in mind while preparingMandate: The Indian Parliament has a very specific mandate. The
discussion of an agenda and proposal of solutions should be within the
mandate of the committee.
Procedure: The purpose of putting in procedural rules in any committee is
to ensure a more organized and efficient debate. Kindly take note that the
committee shall follow the Lok Sabha Rules of Procedure. Although the
Chairing Team shall be fairly strict with the Rules of Procedure, the
discussion of agenda will be the main priority. So delegates are advised
not to restrict their statements due to hesitation regarding procedure.
Role of the Executive Board: The Executive Board is appointed to
facilitate debate. The direction and flow of debate shall be decided by the
committee. The delegates are the ones who constitute the committee and
hence must be uninhibited while presenting their opinions/stance on any
issue.
This committee will be discussing the agenda Reviewing the Armed
Forces Special Powers Act(AFSPA) and Reviewing the Article 370 of
the Indian Constitution. These agendas have an extremely broad ambit
and require a fair amount of reading and research.
In lieu of your research, the following pages will guide you with the
nuances of the agenda as well as the Committee. The Guide touches upon
all the different aspects that are relevant and will lead to fruitful debate in
the Committee. It will provide you with a birds eye view of the gist of the
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issue. It will not, however, be deemed as sufficient for all of your research
requirements since the Executive Board seeks to allow delegates to explore
the topic at hand to gain insightful knowledge.
I will be using my experience to serve as a guide, mentor and trainer. I
hope that I will be able to make this Conference a success by ensuring that
all of you learn sufficiently about the Indian parliament ,rules of procedure
and the agenda at hand. I share an intense passion for MUNs and MIPs and
I aim to share my enthusiasm with all of you.
I look forward to an engaging conference with all of you and hope that we
all make the most of the overall brand of experience that Raipur
International Diplomacy Summit will provide. I am excited to meet all of
you and please dont hesitate to contact me if you require any clarifications
before attending the MIP. Here's to a great conference!
Yours sincerely,

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About the Committee

The Lok Sabha or House of the People is the lower house of the Parliament of
India. The Lok Sabha meets in the Lok Sabha Chambers, Sansad Bhavan,
Sansad Marg, New Delhi. Lok Sabha is composed of representatives of the
people chosen by direct election on the basis of adult suffrage. The maximum
strength of the House envisaged by the Constitution of India is 552. The total
elective membership is distributed among the States in such a way that the ratio
between the number of seats allotted to each State and the population of the
State is, so far as practicable, the same for all States. Lok Sabha, unless sooner
dissolved, continues for five years from the date appointed for its first meeting
and the expiration of the period of five years operates as dissolution of the
House. However, while a proclamation of emergency is in operation, this period
may be extended. The Lok Sabha performs a number of useful functions. Some
of these functions are described below:
1. Legislative:
Law-making is the main function of the Parliament and in this field the Lok
Sabha plays an important role. All types of bills can originate in the Lok Sabha
and if a bill is moved in and passed by the Rajya Sabha, it has to come to the
Lok Sabha for its approval.
2. Financial:

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Control over purse makes one powerful. In financial matters, the Lok Sabha has
a distinct superiority over the Rajya Sabha. The Money Bill can be introduced
only in the Lok Sabha. It is up to the Lok Sabha to accept or reject the
suggestions for change in the Money Bill made by the Rajya Sabha.
3. Control over Executive:
The Council of Ministers is collectively responsible to the Lower House of the
Parliament. Thus, the government is accountable to the Lok Sabha for its acts of
omission and commission. It is only the Lok Sabha which can force the Council
of Ministers to resign by passing a vote of non-confidence against it. There are
also other methods by which the Lok Sabha can exercise control over the
central executive. These methods are putting questions, moving adjournment
motions and call-attention motions, budget discussions, cut-motions and
debates etc. By employing any of these methods the Lok Sabha can expose the
misdeeds and inefficiency of the government and warn it against repeating such
mistakes.
4. Constitutional:
The Lok Sabha shares with the Rajya Sabha the power to amend the
constitution.
5. Electoral:

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(a) The Lok Sabha takes part in the election of the President and the VicePresident. (b) It elects the Speaker and the Deputy Speaker.
(c) Its members are elected to different committees of the Parliament.
6. Judicial:
(a) The Lok Sabha has power to punish a person on the ground of breach of
privilege
(b) It takes part in the impeachment proceedings against the President of India
(c) It shares power with the Rajya Sabha to remove the Judges of the Supreme
Court and the Judges of High Courts.

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AGENDA 1: Reviewing the Armed

Forces Special Powers Act (AFSPA)
INTRODUCTION
Armed Forces (Special Powers) Act, 1958 has established itself as one
of the most controversial constitutional provisions in the history of the
nation. This dubious act promulgates from the Armed Forces Special
Powers Ordinance, 1942, passed by the British government to
suppress the Quit India Movement. The act, with its revamped intent,
seeks to control rebellions, uprisings and insurgency in the disturbed
areas, with respect to the provisions outlined by the Article 33 and
Article 34 of the Indian constitution. That said, the act, which bestows
formidable amount of powers in the hands of the armed forces,
blatantly violates certain fundamental rights and commitments such as
'right to life and personal liberty (article 21)' and the spirit of the
habeas corpus writ as upheld by the article 32. However, the
implementation of this act has been successful in curbing militancy
and internal aggressions (up to a certain extent) in Punjab and the
North Eastern states. Considering the circumstances, the same cannot
be affirmed with respect to J&K.
Nevertheless, infested with repeated human rights violations and
exploitation of the legal provisions, the efficiency of the armed forces
in the upkeep of this legal provision is rightfully undermined by the
masses. So far, three commissions have been appointed in pertinence
to determine constitutionality of this act. The Jeevan Reddy
Commission, 2005, suggested abrogating or revoking the act and
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replacing it with other existent provisions in the constitution. The

most recent commission, Abhay Hedge commission sought to shed
light on the fake encounters and human rights abuses facilitated under
the pretentious aegis of this act. It is imperative for the delegates to
contemplate on the prospects and the requirements of this act and
deliberate upon the instances it had set for itself in the past.
India presented its second report in pertinence to AFSPA to the United
Nations Human Rights Council in 1991, which opened the prospect
for an international moderation on it. According to verbatim records
of the speeches, members had explicitly questioned the
constitutionality of the law under the Indian legal system, its
consistency with the provisions of the International Covenant on Civil
and Political Rights (ICCPR), and its speculative profane nature to
moral conscience. It would be imperative for the members of AIPPM
to reconcile and channelize their views towards the suggestions of the
International Organizations and NGOs/NPOs.

The Jeevan Reddy Commission

The central government accordingly set up a five-member committee
under the Chairmanship of Justice B P Jeevan Reddy, former judge of
the Supreme Court. The panel was given the mandate of reviewing the
provisions of AFSPA and advising the Government of India whether
(a) To amend the provisions of the Act to bring them in consonance
with the obligations of the government towards protection of human
rights; or
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(b) To replace the Act by a more humane Act.

The Reddy committee submitted
its recommendations on June 6,
2005. However, the government
failed to take any concrete action
on the recommendations even
after almost a year and a half.
The then Defence Minister
Pranab Mukherjee had rejected
the withdrawal or significant dilution of the Act on the grounds that it
is not possible for the armed forces to function in disturbed areas
without such powers. Even though AFSPA is applicable to various
parts of the country, the committee must stick to discuss the same with
specific emphasis on Manipur and Kashmir, since these regions are
cannot be left without the armed forces for the sake of national
security if nothing else, but face the most grievous problems because
of the troops sent to protect them.

AFSPA and Jammu and Kashmir:

The Armed Forces (Jammu and Kashmir) Special Powers Act was
passed by the Indian Parliament in 1990. This Act of Parliament gives
the Armed Forces stationed in the above mentioned disturbed area
powers to shoot to kill or destroy property on mere suspicion. A noncommissioned officer or anyone of equivalent rank and above may use
force based on opinion and suspicion, to arrest without warrant, or to
kill. He can fire at anyone carrying anything that may be used as a
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weapon, with only such due warning as may be considered

necessary. Once AFSPA is implemented, no prosecution... shall be
instituted except with the previous sanction of the central government,
in respect of anything done or purported to be done under this Act.
The implementation of AFSPA in Jammu and Kashmir is far more
controversial than expected. On one hand, constant infiltration into
sovereign Indian territory of Pakistan and it's military/civilian
personnel cannot be avoided since it results and political and social
instability and may be considered tantamount to preventing the
prevention of a terrorist attack especially when there exists particular
knowledge about the polarised opinion of the State and it's bordering
neighbour. On the other hand, giving such extensive power to the
military often results in violation of the most basic human right, it
being the Right to Live. Often it so happens, that ordinary civilians are
tortured or killed out of mere suspicions and are later filed into the
legal system as encounters. Absolute power in the hands of the
military has resulted in violation of several rights of the civilians.
There also exist factions of the populace which consider the complete
revocation of this Act, stressing the interestedness of the military in
it's 'operations' and the prolonged peace in the area.
Reverting to legal matters, this Act was brought into effect from the
th
5 of July 1990; after both the Houses of Parliaments passed the Bill
and it received the Presidential Assent. However, another Act of
Parliament, titled the Disturbed Areas Act, 1992. This piece of
legislation gives the State the power to declare the State of Jammu and
Kashmir as a disturbed area thus giving autonomous powers to the
military. Section 3 of the AFSPA, 1990 is reiterated in the DDA of
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1992. It is claimed that Section 3 does not have a legal notification

stating that AFSPA can be implemented in Jammu and Kashmir for
more than a decade as it does now. The implementation of the
Disturbed Areas Act would ratify the same and allow Jammu and
Kashmir to continue to be treated as an instable region. However, the
DDA lapsed in 1998 since it was not ratified in the same year by the
Abdullah Government. Thus, it is argued that the implementation of
AFSPA in the said region is nothing short of illegal, argues senior
PDP leader and constitutional lawyer, Muzzafar Hussain Baig.
The recent alliance of the BJP and the PDP to form the Kashmiri
Government brings an interesting light to the whole matter
considering the fact that the BJP, which had once released a strong
statement regarding their stance against the revocation of ASPA, now
appears to concede to the demand made against it by Mufti's PDP.

The Delegates must pay close attention to the History of Jammu and
Kashmir, the problem faced by the citizens as well as the Government,
the general feeling about AFSPA, party statements at the Central and
the State level, the alleged atrocities of the Army and all Acts and
Bills associated with this part of the Agenda.

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AFSPA in Manipur
Manipur has discernibly faced a wide plethora of disconsolate
episodes due to AFSPA. Manipur, or for that matter the six other
entities of the seven sisters which then were amalgamated with the
state of Assam, were immediately brought under the jurisdiction of
this act once it was ratified, following its approval by the legislation
th
on the 11 of September 1958. The imposition of this act finds its
causes back to the debacles in 1951. In 1951, the Naga National
Council (NNC) claimed to have conducted a "free and fair plebiscite"
in which about 99 % of the Nagas voted for a Free Sovereign Naga
Nation', laying the provenance of secessionist instincts which would
later be an integral cause of agonising insurgency for the
region. Consequentially, this conduced a boycott of first general
elections of 1952- which later, extended into the mass boycott of
government institutions and officials. In order to deal with the
situation, the Assam government imposed the Assam Maintenance of
Public Order (Autonomous District) Act in the Naga Hills in 1953 and
contrived intensive police action against the rebels. When the situation
worsened, The MoHA with warranted recommendations from the
state govt., deployed the Assam Rifles in the Naga Hills and enacted
the Assam Disturbed Areas Act of 1955, providing a legal framework
for the paramilitary forces and the armed state police to combat
insurgency in the region and facilitate necessary measures to
consequentially pacify the same. However, the Assam Rifles and the
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state armed police could not contain the Naga rebellion and the rebel
Naga Nationalist Council (NNC) formed a parallel government, 'The
Federal Government of Nagaland', on 23 March 1956. The Armed
Forces Special Powers Ordinance, 1958 was promulgated by President
Dr. Rajendra Prasad on 22 May 1958. It was replaced by the
revamped Armed Forces special Powers Act, 1958 on 11 September
1958.
This act has been a cause of exasperation and protests in the region.
Following innumerable cases of Human Rights abuses facilitated by
the exploitation of this act and the delusive interpretation of its intent,
Manipur has witnessed mass protests against it. One of the most
noteworthy saga of dissent with regards to this act has to be the
exemplary chronicle of Irom Chanu Sharmila; the lady who has been
on a hunger strike for more than one decade and a half. Her struggle
quintessentially epitomises the plight of Manipur is, or for that matter
anyone else, who has succumbed to the darker facets of the act.

United Nations Human Rights Council's

Report
Given below is an excerpt from the report submitted to
the UNHRC in 2013:
While India is to be commended for several positive
aspects in its human rights record, there is reason for
serious concern, specifically about extrajudicial
executions. The main patterns of unlawful killings in
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India at present involve, inter alia, killings resulting from

various instances of excessive use of force by the
security forces, those occurring in the context of attacks
by various armed groups, and killings of vulnerable
persons. 92. Impunity is the central problem. The
obstacles to accountability, especially the need for prior
sanction of prosecutions of civil servants, should be
removed. 93. To a large extent, the required structures to
decrease extrajudicial executions are already in place.
The steps to be taken have also largely been identified
within the system. A concerted and systematic effort is
required by the State, civil society and others concerned
to eradicate the occurrence of unlawful killings. In this
process, some best practices that are already followed in
the country should be used as models for reform
elsewhere. 94. There is a strong need for victims to
speak about their experiences. A credible national
process under the form of transformative justice is called
for. Justice for victims, accountability and punishment of
the perpetrators are essential elements of such a process.
Specific attention should be given to the following
issues:
(a) challenging the general culture of impunity;
(b) addressing the practice of fake encounters to
ensure that it is eliminated; and
(c)

ensuring swift, decisive action, with concrete

outcomes, is taken in cases of large-scale killings.
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95. A public commitment to the eradication of the

phenomenon of unlawful killings is needed.

Conclusion:
Notwithstanding the imposition of this act, the north
eastern region is yet to witness the dawn of renaissance
from insurgency. Following is a synoptic moderation
regarding its status quo:
NAGALAND: On the brink of renaissance.

AFSPA was enacted in Nagaland in 1958, before its

bifurcation from Assam in December 1961. AFSPA
came in the contextual paradigm of the Naga rebellion
(refer to 'AFSPA in Manipur' Section for details) in what
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was then the Naga Hills district of Assam and has

refused to leave more than 50 years after the new state
was created, thanks to continued insurgencies by
multiple rebel groups. But the situation has changed
dramatically since the NSCN(IM) longest operating
insurgency outfit in the country, until it signed the peace
accord in 2015 began peace talks over 14 years ago
culminating to its formalized consequences in 2015.
However, The Khaplang fraction of the same (the same
outfit which carried out an ambush on the army convoy
in Chandel district, in 2015) is still under operation.
Most of civil society and humanitarian groups and
organizations in Nagaland are now opposed to the
continuation of AFSPA.
ASSAM: Insurgency and AFSPA, a disproportionate
saga.
Assam was the first state to have the AFSPA imposed on
it in 1958. The Act returned to present-day Assam on
November 27, 1990, when the state was declared a
'Disturbed Area' in the wake of largescale violence by
the ULFA. AFSPA has been in force without a break
ever since, except in the Guwahati municipal area, from
where it was lifted about a decade ago. In November
2014, the union Home Ministry extended the application
of AFSPA in Assam for one more year in consideration
of 'violent incidents caused by the underground outfits',
namely ULFA(I), NDFB(S) and the border areas of the
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state of Assam by underground outfits like GNLA,

KPLT, UALA, ULFA (I), NDFB(S), NSCN (IM) and
NSCN (K).
MEGHALAYA: Volatile border and pacified
highlands.
AFSPA is not in force in Meghalaya despite a series of
violent acts by armed insurgent groups including the
most dreaded Garo National Liberation Army (GNLA).
But areas within 20 km of the state's boundary with
Assam are under the purview of the Act. The Home
Ministry has declared this 20-km belt 'disturbed', and
armed forces deployed in Assam are permitted to go into
this area in hot pursuit of rebel groups.
ARUNACHAL PRADESH: Fresh extension
Three districts of the state Tirap, Changlang and the
newly-created Longding had been under AFSPA
since 1991, and the Centre on March 27 brought the
whole state under it. But strong protests by the state
government and civil society organizations forced the
central government to subsequently limit its application
to the districts bordering Assam. That leaves seven
districts of Arunachal Pradesh out of AFSPA. But even
before the March 27 notification in fact, since 1990
a 20- km stretch inside the state along the border with
Assam had been under AFSPA
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MIZORAM: Appeasement within wounds

Curtains fell on the insurgency in Mizoram on June 30,
1986, with the signing of the Mizo Accord, said to be the
only successful accord in the country so far. The signing
of the accord simultaneously led to the withdrawal of
AFSPA, which had been imposed on the state since the
time it was the Lushai Hills district of Assam in the mid1960s. And yet, the wounds don't seem to have healed
completely. Memories of the killing of innocent people,
rape, destruction of property, burning of villages and
largescale displacement of people remain fresh in the
minds of many Mizos.

Conscionable questions:
Here are some suggested topics for moderated caucus
.These are questions the delegates must address in the
course of the debate:
1. Do we still need the AFSPA in any form?
2. Who should have the Power to implement/revoke
AFSPA?
3. How do we control the turbulent areas if the army is
to be removed and
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their powers stripped?

4. How can the Army be made effective in the
turbulent areas?
5. To what extent can AFSPA be considered legal?
6. How can we protect the civil rights and liberties
despite giving certain
autocratic powers to the Army, if at all?
7. What consensus can be reached between the
polarised factions for and
against AFSPA?
8. Should the International Organisations, if any,
accentuating on AFSPA
be considered as valid stake-holders to it?
9. Should the police has equivalent powers as that of
the Army's?

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10. Are the reports of the three committees plausible?

It is providential for us to understand that AFSP is not
entirely dastardly. Insurgency cannot be subdued until
our armed forces are equally to the operatives. The fact
is, when a soldier withstands a volley of firing from the
other side, the most plausible reaction is to provide
resilience. However, when one is asked to not just set
aim, but even to consider the possible consequences
before pulling the trigger, it is conceivable that his
abilities and would be infringed. A terrorist doesn't think
about facing trial before killing a soldier; and when a
soldier is sought to reciprocate the same, yet complied
with the cautiousness of having to face a trial, more
often than not it would result a triumphant terrorist over
a dead soldier. But then again, on the receiving end of
the barrel, it could well be a civilian, mistaken or
ostentatiously supposed to be a terrorist.
During the course of deliberations over the three days,
delegates are expected to contemplate this and many
other pertinent arguments. Your professional paradigm is
subjected to your political interests; your preferential
threshold to your cognitive subjectivity; and your
morality to your circumstantial ideology. However,
AFSPA has been the cause behind innumerable sons
who did no wake up to see the dawn, mothers who as
appallingly succumbed to death as affectionately they
had embraced their sons, and fathers who relinquished
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their venerated and cherished abodes for the heavenly

one. AFSPA should not be subjected to the status of a
trifle contemplative issue; it is a matter of conscience,
'righteous intuitional conscience'.

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AGENDA 2:
Reviewing the Article 370 of the Indian
Constitution.
A Kashmir PoetI cannot drink water
It is mingled with the blood of young men who have died up in the mountains.
I cannot look at the sky; It is no longer blue; but painted red.
I cannot listen to the roar of the gushing stream
It reminds me of a wailing mother next to the bullet-ridden body of her only son.
I cannot listen to the thunder of the clouds It reminds me of a bomb blast.
I feel the green of my garden has faded Perhaps it too mourns.
I feel the sparrow and cuckoo are silent Perhaps they too are sad.
Introduction
The Indian federal polity grew out of two diametrically divergent processes which underlined the
devolution of authority to the provinces, in what was known as the British India before the
independence, and the integration of the Indian States, which had acceded to India in accordance
with the Instruments of Accession. The Instruments of Accession envisaged the procedure by virtue
of which the Indian States, after the British withdrawal from India and the lapse of Paramountcy,
exercised the right to accede to the Dominion of India. The federal organisation of India was,
therefore, constituted of the erstwhile Indian provinces of the British India and the Indian States
which were liberated from the British tutelage after the British colonial organisation came to its end
in 1947.
The founding fathers did not recognise any subnational boundaries, which divided India, into the
denominations of the federal structure, they devised. The Provinces and the States, were cultural,
linguistic and religious pluralities, and their political boundaries did not synchronise with any
specific subnational gradients. The one exception to this principle, adopted by the framers of the
Indian constitution, was the special position, the Jammu and Kashmir state was accorded. The
Jammu and Kashmir State was recognised as an autonomous identity, based upon the Muslim
majority character of its population. The State was not brought within the process of the integration
of the Indian princely States, which followed their accession to the Dominion of India. The
representatives of the Jammu and Kashmir State, participated in the deliberations of the Constituent
Assembly of India, but the National Conference which formed the Interim Government in the State,
favored the exclusion of the State from the constitutional organisation of India. Consequently
special constitutional provisions were embodied in Article 370 of the Constitution of India for the
State. The state was reserved the right to convene a separate Constituent Assembly was convened in
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1951. In November 1956, it completed the task of framing the Constitution of the State. The
Constitution of the state was brought in to force on 26 January 1957. The Jammu and Kashmir state
has ever been governed by two sets of constitutional provisions, the first envisaged by the
constitution of India state. The position of the state, in the Indian constitutional organization has
been determined by the constitution of India and the instruments of the State Government have been
devised by the constitution of the state.
Article 370 does not display any special and unique status for Jammu Kashmir within the
framework of the Constitution of India. It only displays temporary and interim measure for Jammu
Kashmir within the ambit of the Constitution of India. To say that Article 370 is a bridge between
India and Jammu Kashmir State is a wrong notion as it manifests that the State and India were
separate entities. One may recall Vishnupuran that states that the country which is spread from Utter
Himalaya to Dakshin Sumdra is the complete geographical and territorial boundaries of Bharat and
the people who live in this boundary are Bhartiyya. Jammu Kashmir State thus befalls within this
framework as an integral part of Indian State from time immemorial. Those who venture to say that
if Article 370 is deleted or abrogated from the textual Constitution of India there will be no State of
Jammu Kashmir in the geographical map of India may have to take coaching or tutoring in the
history of India. Those who claim that there cant be any discussions within the frame work of the
Constitution of India reveal their mindset against India and Indian Constitution.It is a known factual
position that Article 370 was neither conceived within the Instrument of Accession nor a part of the
draft Constitution; it was presented before the Constituent Assembly of India on 17th day of
October 1947 and deliberated as well as passed as a temporary and interim measure on the same
day. It is a matter of historical truth, and there is nothing pretentious about it, that it was introduced
in the Constituent Assembly of India by Shri Gopalaswamy Ayyengar after persistent persuasion by
the representatives from the State of Jammu Kashmir, viz., National Conference headed by late Shri
Sheikh Mohammad Abdullah, the sole political party at that time, on 17 October 1949 in the form
of Article 306A followed by a limited discussion and adopted for inclusion in the text of the
Constitution of India the same day. It may be unequivocally stated that Jammu Kashmir is no
problem. The problem has been created in Jammu Kashmir by the inclusion of Article 370 as a
temporary provision in the textual Constitution of India in its relation to Jammu Kashmir that needs
to be revisited and re-examined from geo-strategy and geo-politics perspectives. Had the founding
fathers of the Constitution of India farsightedness of geo-strategy and geo-politics, they ought to
have desisted as well as restrained from giving birth and berth to Article 370 in the Constitutional
language of India. Article 370 is not the bye product of instrument of accession conceived under the
Government of India Act, 1935 and the Indian Independence Act, 1947. Accession was made not
with the intent to have Article 370. But JKs history and traditions demanded the interests of the
State in joining the Indian Union and its Constituent Assembly and taking its due integrating status
in the constitutional structure of India. Instrument of accession was an action plan for the accession
of Indian princely states with the Union of India making it Union of States as a step forward for
the federalism as a basic structure of the Constitution of India. Instrument of Accession of JK alike
other Instruments of Accession aimed at the unity and integration of Union of India Bharat,
paving a way for the future of an Independent Constitution of India applicable to the whole India
including the State of JK amongst the Union of States of the Indian Federation

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It is clear that the Instrument of Accession was unconditional. The acceding Monarch Maharaja
Shri Hari Singh had never used the terms will of the people or wish of the people or plebiscite
or any other condition in the instrument of accession. It was in line with the Government of India
Act, 1935 and the Indian Independence Act, 1947. It was compatible with all norms of international
law. It was legally and constitutionally beyond any shadow of dispute. It was socially, morally and
politically unquestionable. It justified the reasons for belated decision to accede to India. The
accession was accepted by the Government of India on 27 October 1947. The accession was with
regard to the undisputed geographical and territorial boundaries of the State as they stood in the
political and geographical map of the State including POJK and COJK as on 15 August 1947 and
26/27 October 1947. The accession of Jammu Kashmir State to the Indian Union in terms of
Instrument of Accession was an act of legal plenitude. Both the Acts of 1935 and 1947 stand
repealed from the statutory books of India (Article 395), and, hence, instruments of accession also
stand outside the realm of statutes, and as such a matter of past history, which is a dead history. The
act of accession cannot be questioned. If this is questioned on the grounds of its possible illegality,
unconstitutionality, then all accessions whether to India or Pakistan would be open to similar
objections that may consequentially lead to disintegration inviting a Pandora box of intrigues as
well as incongruities of stirring situations.

WHAT DOES ARTICLE 370 ENJOIN?

It is pertinent to mention three important components of Article 370, viz., in consultation with
the Government of the State, with the concurrence of the Government of the State, and the
recommendation of the Constituent Assembly of the State shall be necessary.
Article 370 contains 3 clauses:
Clause 1 provides that provisions of Article 238 of the Constitution of India shall not apply in
relation to the State of JK. Article 238 originally related to Part B States in the original
constitutional language, which was repealed from the Constitution of India by seventh Amendment
Act, 1956 as a consequence of States Reorganization Act, 1956 doing away with Part A, B, C
States. Unfortunately, it is a paradox that this Article continues to occupy a place in the language of
Article 370.
Clause 1 also stipulates that the power of Parliament of India to make laws for the State of JK shall
be limited to
(i)

Those matters in the Union List and concurrent List which, in consultation with the
Government of the State, are declared by the President to correspond to matters specified
in the Instrument of Accession governing the accession of the State to the Indian Union,
viz., Defence, External Affairs, Communication, and Ancillary.
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(ii)

Such other matters in the said Lists as, with the concurrence of the Government of the
state, the President may by order specify, i.e., Central laws in terms of matters enumerated
in the Union List and Concurrent List shall not extend to the State of JK without the
concurrence of the State Government.

(iii)

The provisions of Article 1 (and article 370) of the Constitution of India shall apply in
relation to the State of JK. Article 1 became operative on the date of the adoption and
enactment of the Constitution of India, 26 November 1949. Accession of the State of JK
took place on 26-27 October 1947; JK like other Native/Princely States became an integral
part of Indian Federal Democratic Republic on the date of adoption and enactment of the
Constitution of India, i.e., 26 November 1949.

(iv)

Such of the other provisions of the Indian Constitution and subject to such exceptions and
modifications shall apply in relation to the State of JK as the President may by order specify
: Provided that no such order which relates to the matters specified in the Instrument of
Accession shall be issued except in consultation with the Government of the State, and
provided further that no such order which relates to matters other than those referred to in
the Instrument of Accession except with the concurrence of the Government of the
State.[By Constitutional (Application to the State of Jammu and Kashmir) Order, 1950
Article 1 (JK as an integral part of the Indian Union) and Articles 5-11 (Citizenship of India
thus making all permanent residents of JK as citizens of India) were extended and made
applicable to the State of JK immediately. Subsequent Constitutional Application to the
State of JK Orders 1954, 1962, 1966, 1985 extended provisions of the Constitution of India
with such exceptions and modifications, of course with the concurrence and in consultation
with the Government of the State, from time to time. The Central Laws (over 370) were
also extended and made applicable to the State of JK with the concurrence of the State
Government from time to time to bringing the State in the national stream.]

By Constitutional application to the State of JK Order, the President added a new Article 35A in the
Fundamental Rights part of the Indian Constitution giving special privileges to the permanent
residents of JK, viz, purchase of immovable property within the State; free education and
scholarships; and public employment. This addition raises some constitutional questions:
1. Does the President of India enjoy power under Article 370 to add a provision in the Fundamental
Rights Part of the Constitution of India?
2. Can the President by Presidential Order create a classification between the citizens of India, i.e.,
citizens of India on the whole on the one side not to enjoy special privileges and the permanent
residents of JK as citizens of India on the other side enjoy special privileges which are otherwise
denied to the citizens?

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3. Can the President of India exercise constituent making powers under Article 368 by adding
Article 35A?
4. Is this power compatible with the constitution spirit, constitution culture and constitution
practice?
Clause 2 encapsulates that if the concurrence of the Government of the State referred to the matters
in the Union List and the concurrent List was given before the Constituent Assembly for the
purpose of framing the Constitution of the State is convened, it shall be placed before such
Assembly for such decision as it may take thereon.
Clause 3 empowers the President to declare, by public notification, that Article 370 shall cease to
be operative or shall be operative only with such exceptions and from such date as he may specify:
Provided that the recommendations of the Constituent Assembly of the State shall be necessary
before the President issues such notification.
The Constituent Assembly of the State finally adopted and enacted the Constitution of JK on
seventeenth day of November, 1956 that was inaugurated on 26 January 1957 duly approved the
accession in terms of Instrument of Accession in unequivocal Preamble constitutional language the
integration of the State of JK to the Indian Union, viz., in pursuance of the accession of this State
to India which took place on the twenty-sixth day of October, 1947, to further define the existing
relationship of the State with the Union of India as an integral part thereof.
Section 3 of the Constitution of Jammu and Kashmir states: The State of Jammu and Kashmir is
and shall be an integral part of the Union of India.
Section 4 of the Constitution of Jammu and Kashmir further states: The territory of the State shall
comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty
or suzeranity of the Ruler of the State.
Section 147 of the State Constitution empowers the State Legislature to amend the Constitution of
the State except the amendment of Sections 3, or 4, or 5, or 147 or the provisions of the
Constitution of India as applicable in relation to the State.
The Constitution of Jammu Kashmir does not make any reference to Article 370 in its relation to
India. So, where is the question that it is a bridge between the State and the Indian State!

ISSUES AND CHALLENGES

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1. Temporary and Transition Provision Article 370 was introduced under temporary and transition
provision, it is but still in existence. So who will decide what was actually meant by the term
temporary and transition provision.
. oes not fulfill the criteria of Section of the instrument of accession which says- The terms of
this my instrument of accession shall not be varied by any amendment of the Act or the Indian
Independence Act, unless such amendments are accepted by me by instrument supplement to this
instrument.
. ncourages Separationist tendency- As per the article published in Indian republic, Kahmiri
locals do not think of them as part of India and often asks people coming from different states to
Kashmir, if they have you come from India. This shows that even the concept of unity in integrity,
which is one of the best attribute of Indias most cherished culture, is losing its meaning.
. It affects the economic development- As per the provisions of article 370 people from outside
Kashmir cannot invest in Kashmir, they cannot buy any property or carry on any business. Where
rest of the India enjoys right to move freely and carry on trade in any part of India thereby
developing India as a whole, Kashmir due to restriction put by Article 370 is closing doors of
development for itself.
. Permitting corruption-As we have CAG, Lokpal, CBI to investigate corruption issues in other
States of India, Kashmir due to article 370 does not come under these anti corruption bodies. When
corruption is on its toll in India it becomes a very important issue of debate that since the top most
investigation bodies of India does not have its operation in Kashmir, is Kashmir totally a corruption
free State and does not need such authorities.
. Threat to Indian securityIt is well known to all that Pakistan is a great threat to India due to its
deep involvements in terrorism. The Article also gives Pakistan's citizens entitlement to Indian
citizenship, if he marries a Kashmiri girl. This is very sensitive issue and needs to be looked upon
with great care and precautions. This way we are welcoming terrorists thereby making them our son
in laws. How can this be justified when terrorism is not only a national issue of concern but global
as well and more importantly when Kashmir is the eye of Pakistan right from the time of
Independence.
7. RTI is not applicable to State of J & k- people are not only deprived of right to information but
also the procedure to file the complaint. Which means a very important aspect of Democracy to
have a transparent government is missing from the State. RTI has proved to be a very important tool
to fight corruption, in the absence of RTI it can be assumed that politicians of J & K wants to
escape from accountability thereby refusing to abrogate Article 370.
8. People in the State are not enjoying various beneficial laws such as marriages between Kasmiris
and people from rest of India. Thereby affecting their human rights as well as marriage is a very
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personal issue and if on marrying a non Kashmiri a Kashmiri women ceases to be the State subject
where she was born and loses her identity of the State is quite discriminatory as it does not happen
with women from rest of the State in India as they have only one citizenship that is Indian
Citizenship.
9. The emergency provisions Article 352 and 356 do not apply to State of Jammu and Kashmir.
Under Article 356 where President can declare his rule in any state of India for Jammu and Kashmir
he has to first consult with the Governor of State who himself is appointed by the President.
10. Even the very important terminologies like secularism and socialism are absent from the
Preamble of the Constitution of Jammu and Kashmir.

ROLE OF JUDICIARY
LANDMARK CASES
1. Sampat Prakash v. State of J&K : The main issue which was raised by the petitioner was
based on the fact that Article 35 (c) of Jammu and Kashmir Constitution as initially
introduced by the Constitution (Application to Jammu and Kashmir) Order, 1954, had given
protection any law relating to preventive detention in Jammu and Kashmir against invalidity
on the ground of infringement of any one of the fundamental rights guaranteed by Part III of
the Constitution for a period of five years only. Subsequently this period was extended to
ten years and later to fifteen years by the Presidential Orders dated 1959 and 1964. The
petitioner challenged these extensions on the ground that the orders making such
modifications could not be validly passed by the President under Article 370 (1). Article 370
could only have been intended to remain effective until the Constitution of the State was
framed and thereafter it must be held to become ineffective that any modification made by
the President subsequent to the enforcement of the Constitution would be without the
authority of law. The above argument was rejected by the Supreme Court and held Article
370 should be held to be continuing in force because the situation had existed when this
article was incorporated in the Constitution had materially altered, and the purpose of
introducing this article was to empower the President to exercise his discretion in applying
Indian Constitution and a reference was also made that Article 368 of the Constitution in its
application to State of J&K under which an amendment to the Constitution under Article
368 is of no consequence in the State of J&K unless applied by the President under Article
370 (1).
2. Mohd. Damnoo v. State of J&K The petitioner challenged the validity of his detention
under the J&K Preventive Detention (Amendment) Act, 1967, on the ground that the Act is
invalid as it has not been assented to by the Sadar-i-Riyasat of the State. On November 16,
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1952, the President had made an order substituting another Explanation for the existing one
in clause (1) of Article 370, as For the purpose of this article, the Government of the State
means the person for this time being recognised by the President on the recommendation of
the Legislative Assembly of the State as the Sadar-i-Riyasatof J&K, acting on the advice of
Council of Ministers of the State for the time being in office. According to the counsel on
behalf of the petitioner, neither the State Assembly nor the President were competent to
impair the functioning of the Sadar-i-Riyasat of the State unless the Constitution of India
was amended under Article 368 and 370 (3) or a fresh Constituent Assembly was convened
to amend the Explanation. The above argument was not accepted by the Supreme Court and
the Court explained the following feature of Article 370 (1) (b) and (d) is the necessity of
the concurrence of the State Government. Article 370 (1) merely recognised a constitutional
position in the State. It was contended Article 370 (1) (b) and (d) places no limitation on the
framing or amendment of the Constitution of J&K. basically, it was pointed out that the
change in the designation and the mode of the appointment of the Head of the State, the
constitutional position in the State remains basically the same and the Governor is the
successor to the Sadra-i-Riyasat and can validly exercise his powers as Head of the State.
3.

Prem Nath Kaul vs State of J&K, 1959 AIR 749 This was One of the earliest and leading
case regarding the impact of Art 370 to be decided by the Honble Supreme Court. In this
judgment the Supreme Court traced the passing of power from the hands of Maharaja Hari
Singh to the successor. The Court held that Article 370 in no way reduced the plenary
powers of the Maharaja, nor did it try to impose the Presidents will on the state of Jammu
& Kashmir. What it did in fact, was that it vested authority in the Constituent Assembly to
decide the relationship that the State wanted to establish with India. It also observed that the
continuance of the exercise of powers conferred on the Parliament and the President by the
relevant temporary provision of Article 370 (1) is made conditional on the final approval by
the said Constituent Assembly in the said matters.
PRINCIPLES SET OUT BY JUDICIARY
The Supreme Court has refused to interpret the word modification as used in Article 370
(1) (d) in any narrow or pedantic sense. In Puranlal Lakhanpal V. President of India and
Others, Supreme Court observed: We are therefore of opinion that in the context of the
Constitution, we must give the widest effect to the meaning of the word modification used
in Article 370(1) and in that sense, it includes an amendment. There is no reason to limit the
word modifications as used in Article 370(1) only to such modifications as do not make
any radical transformation. The J&K court gave its verdict on a petition regarding the
applicability of the Securitisation and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 (SARFAESI) in the state. The SARFAESI Act, 2002, enacted
and enforced by the Indian Parliament in 2002, empowers banks and financial institutions to
recover their non-performing assets without the courts intervention. The High Court said
this Act cannot be applied to J&K, but suggested that the state can have its own law on the
lines of the SARFAESI Act. In a judgment that would safeguard the special status of Jammu
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and Kashmir under Article 370, the J&K High Court in July 2015 said that the constitution
of the state is sovereign in character and the Assembly exercises sovereign power to
legislate laws. The court also said that the sovereign character of the state cannot be
challenged or abridged. The division bench comprising Justices Muzaffar Hussain Attar and
Ali Mohammad Magrey also ruled that Article 35 (A) of the Constitution of India which
RSS and its affiliates view as unconstitutional and want repealed clarifies the already
existing constitutional and legal position and does not extend something new to the state.

COMPARISON BETWEEN VARIOUS STATES HAVING SPECIAL STATUS

Article 371 - Special Provisions for Maharashtra & Gujarat
President is authorized to provide that Governor of Maharashtra & Gujarat would have special
responsibilities for:
1. Establishment of separate development boards for Vidarbha, Marathwada & rest of Maharashtra
+ Kutchh & rest of Gujarat, with the provision that a report on working of these boards will be
placed each year before state Legislative assembly.
2.

Equitable allocation of funds for developmental expenditure over the mentioned areas.

3.

Equitable arrangements providing adequate facilities for technical education, vocational

training & adequate opportunities for employment in state services

Article371-B Special Provisions for Assam.

1.

President may provide for the constitution & functions, a committee of Legislative assembly of
the state, consisting of members of that assembly elected from the tribal area of Assam.

2.

President can also direct that the governor shall have special responsibility to secure proper
functioning of that committee

Article 371 C Special Provisions for Manipur

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1.

President may provide for the constitution & functions, a committee of Legislative assembly of
the state, consisting of members of that assembly elected from the hill areas of Manipur.

2.

President can also direct that the governor shall have special responsibility to secure proper
functioning of that committee.

3.

Governor should submit an annual report to the President regarding the administration of Hill
areas.

Article 371 E Special Provisions for Sikkim

1.

Legislative assembly shall not less than 30 members + 1 seat from the state in Lok sabha & 1 in
parliamentary constituency.

2.

For the purpose of protecting the rights & interest of different sections of Sikkim population,
Parliament is empowered to provide number of seats in Sikkim administrative assembly for the
people belonging to such sections.

3.

Governor in his discretion (On direction of President) have special responsibility for peace &
equitable arrangement for socio- economic development of different sections of Sikkim

Article 370- special provisions for J&K

1. Article 1 states J & K is a constituent state of Indian union, however Article 370 grants a special
status to J & K on the basis of agreement concluded at time of J & K accession to Indian union:
2.

J & K has its own constitution apart from Indian constitution (Framed on 17th nov. 1956 &
came in force on 26 jan 1957).

3. Parliament can not make laws with regards to J & K on subjects stated in state list.
4. Residuary powers lies with legislature of J & K.
5.

Follows dual citizenship, only citizens of J & K can take part in elections to state assembly
Only citizens of J & K can acquire, own & dispose of immovable property in J & K.

6. Parliament can not change the name, boundary or territory of J & K without the concurrence of
state legislature.

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7. No preventive detention law made by the government can have automatic extension to J & K.
8. Union has no power to proclaim a financial emergency to J & K.
The above special provisions clearly shows that because of some untoward situations there was
felt a need to give some special provisions to various states. While mostly the special provisions
deal with protecting the cultural, linguistic and economic benefits to the states, which had
various issues, related to these matters but the case was totally different with the state of
Kashmir. Though it is a known fact that the condition and situation in Kashmir is much different
from other states, which have special provisions so it truly deserves some special authorities and
powers. But giving arbitrary power is not justified and from the above comparison it can be
clearly seen that the state of Kashmir has been given some arbitrary political powers.

Need for review and amendment

Special status in the Constitution creates a feeling of seperatism. An
amendment to that effect shall bring about an integration of Kashmir with
the rest of India.
between the Kashmiri insurgents and the Indian Government are tied to a
dispute over local autonomy. Democratic development is limited in
Kashmir, which created a catalyst for the insurgency when it resulted in
some of the state's legislative assembly members forming armed insurgent
groups. India has done a laudable job of checking unrest by way of helping
bring about economic prosperity in recent years but change has to be made
not only economically but also socially through a change in the
Constitution.
How An Amendment is to be made:
The power of the Parliament to amend Article 370 lies in Article 368 (1)
which states that Notwithstanding anything in this Constitution,
Parliament may in exercise of its constituent power amend by way of
addition, variation or repeal any provision of this Constitution in
accordance with the procedure laid down in this Article.
According to Article 368(2)- An amendment of this Constitution may be
initiated only by the introduction of a Bill for the purpose in either House
of Parliament, and when the Bill is passed in each House by a majority of
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the total membership of that House and by a majority of not less than twothirds of the members present and voting, it shall be presented to the
President who shall give his assent to the Bill and thereupon the
Constitution shall stand amended in accordance with the terms of the Bill.
In simple words to seek an amendment for the purposes of the competition
a two-third majority shall be required. For the amendment of Article 370
the proviso to Article 368 does not apply.

Points To Deliberate Upon ( Suggested topics for moderated caucus)

Is the abrogation of Article 370 a valid argument?
What are the amendments possible to Article 370?
What should Indias stance be on Jammu and Kashmir and Pakistans association with the state?
Can there be a special Minister for the State of Jammu and Kashmir?
What is the future course of action that must be taken in order to firm Indias stance on Jammu
and Kashmir?
How does the Indian Parliament plan on fulfilling the special demands of the people of Jammu
and Kashmir?
Is there a possibility of a solution supported by all parties in the Lok Sabha?

BIBLIOGRAPHY
http://lawmin.nic.in/olwing/coi/coi-english/coi-4March2016.pdf
http://www.indiandefencereview.com/news/ article-370-the-untold-story/
http://www.thehindu.com/opinion/lead/ understanding-article-370/article5426473.ece
http://kashmirherald.com/featuredarticle/ article370.html
https://en.wikipedia.org/wiki/Article_370
https://en.wikipedia.org/wiki/1974_Indira%E2%80%93Sheikh_accord
http://www.economist.com/blogs/dailychart/2011/05/
indian_pakistani_and_chinese_border_disputes
http://news.bbc.co.uk/2/hi/ south_asia/6367917.stm
https://en.wikipedia.org/wiki/ Insurgency_in_Jammu_and_Kashmir
http://www.bbc.com/news/world-asia-26847362
https://www.amnesty.org/en/latest/
news/2015/07/india-accountability-still-missingforhuman-rights-violations-in-jammu-andkashmir
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http://www.aljazeera.com/indepth/opinion/2014/02/fake-encounters-expendablekashm20142281139146859.htm
Jawaharlal Nehru in Delhi Agreement of 1952.
The Daily Excelsior, June 24, 2002.
Anthony Read & David Fisher, The Proudest Day Indias Long Road to Independence,
Pimlico [1998]
B.L. Sharma,Kashmir Awakes1971, p-83.
The State Constitution was formally established on 17th November 1956 and came into full
force on 26th January 1957.
Selected works of Jawaharlal Nehru, Vol. 18, p. 418 & vol. 19 pp. 295-6; Jawaharlal Nehru
said in the LokSabha on June 26 and August7, 1952- I say with all respect to our
Constitution that it just does not matter what yourConstitution says; if the people of Kashmir
do not want it, it will not go there.Because what is the alternative? The alternative is
compulsion and coercionWe have fought the good fight about Kashmir on the field of
battle(And)inmany a chancellery of the world and in the United Nations, but, above all,
wehave fought this fight in the hearts and minds of men and women of that State ofJammu
and Kashmir. Because, ultimately -I say this with all deference to thisParliament the
decision will be made in the hearts and minds of the men andwomen of Kashmir; neither in
this Parliament, nor in the United Nations nor byanybody else
Justice A. S. Anand; The Constitution of Jammu & Kashmir Its Development &
Comments 1998, 3rd ed. p- 99.
Sardar Patel, the then Minister of States in India, declared in the Constituent Assembly, In
view of the special problem with which the Jammu and Kashmir Government is faced, we
have made special provisions for the continuance of the State with the Union on the existing
basis. [Constituent Assembly Debates (India), Vol. X, No. 5].
Kashmir Sentinel, August 2000.
ArvindLavakare; The Truth about Article 370; 2005; p-24.
Article 246 of the Indian Constitution governs the law making powers of Parliament and a
State Legislature. Items on which Parliament alone can make laws are enumerated in what is
called List I Union List, while matters on which both, Parliament and a State Legislature,
can make laws is named as List III Concurrent List, subject to the Parliament law
prevailing over a provision of the State law. There is also List II State List, which
enumerates matters on which a State Legislature can make laws applicable to that State
alone. All these three Lists are included in the Seventh Schedule related to Article 246.
In practice, six entries, including the omnibus 97, stand excluded from the prevalent Union
List and 21 entries stand excluded from the prevalent Concurrent List. Additionally, five
items in the Concurrent List are not applicable to the State. All these exclusions are the
result of orders issued over the years under Article 370..
State Autonomy Committee Report, p-63.
Hari Om elink Jammu &Ladakh from Kashmir Valley, The Tribune, 27-8-2000.

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1959 AIR 749;A Constitution Bench consisting of fivejudges unanimously held that Article
370 (2) shows that the Constitution-makersattached great importance to the final decision
of the Constituent Assembly, andthe continuance of the exercise of powers conferred on the
Parliament and thePresident by t he relevant temporary provision of Article 370 (1) is
madeconditional on the final approval by the said Constituent Assembly in the saidmatters.
It referred to Clause 3 and said that the proviso to Clause (3) alsoemphasises the
importance which was attached to the final decision ofConstituent Assembly of Kashmir in
regard to the relevant matters covered byArticle 70. The court ruled that the
Constitution-makers were obviouslyanxious that the said relationship should be finally
determined by the ConstituentAssembly of the State itself.

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