About Us Important Notice/Alerts

Non-Paper

Posted on: September 04, 2019 | Back | Print

 Non-Paper

In the Simla Agreement signed between India and Pakistan on 02 July 1972, the two countries have agreed to settle their differences by peaceful means through bilateral negotiations.

  1. As there is an effort to misinform the Members of the UN Security Council on the recent developments pertaining to Jammu & Kashmir, some of the relevant facts are as below.
  2. Pakistan has alleged that the abolition of Article 370 of our Constitution constitutes a grave violation of UNSC Resolutions, especially of UNSCR 38 / 1948. The facts are as follows :

(i) Article 370 of the Constitution is a matter that relates solely to the citizens of India. No external party was involved in the drafting or subsequent inclusion of Article 370 into the Constitution of India. It was adopted through the Constituent Assembly on 26 November 1949. Any change or modification thus remains the sole prerogative of the Republic of India;

(ii) At the time of its inclusion in the Constitution, Article 370 was deemed as a Temporary Provision as explicitly stipulated in Part XXI of the Constitution; and

(iii) For the record, Article 370 was promulgated as part of the Constitution of India on 26 January 1950. UNSC Resolution No. 38/1948 pre-dates the promulgation of the Constitution of India by more than twenty four months. Article 370 is, therefore, not germane to the said Resolution.

  1. Government of India has provided detailed justification to the Parliament on 05 August 2019 as to the reasons for effecting such change in Article 370. They include :

(i) The Right to Education enacted by the Parliament in August 2009 for all children between the ages of six to fourteen to have free and compulsory education, could not be extended to Jammu & Kashmir;

(ii) The right of every Indian citizen to inherit property was taken away from women belonging to Jammu & Kashmir who were married to men from another part of India;

(iii) The socio-economically disadvantaged sections in Jammu & Kashmir could not benefit from any of the mandatory affirmative action programmes/measures legislated by my Government over the past decades. Social justice was thus denied to significant parts of the population living in Jammu & Kashmir including the tribal population;

(iv) Citizens from other parts of India were not permitted to invest in Jammu & Kashmir, thus closing avenues of job creation and development; and

(v) The 73rd and 74th amendments to the Constitution relating to grass-roots elections in villages and municipal councils, which mandated not less than 33 per cent representation for women, could not be extended to Jammu & Kashmir.

  1. In sum, the provisions of Article 370 were found to be discriminatory on the basis of gender, socio-economic groupings and place of origin, and thus incompatible with the Fundamental Rights and Directive Principles enshrined in the Constitution of India.
  2. It is also well-established fact that in the absence of opportunities for economic advancement and well-being, the youth from Jammu & Kashmir were misled onto the path of extremism. Others took advantage of the situation created by Article 370 to sponsor cross-border terrorism in Jammu & Kashmir. Obviously, they have vested interests in its continuation.
  3. Pakistan, which has chosen to describe the changes in the Indian Constitution as constituting grave violation of UN Security Council Resolution 38 of 1948, has not mentioned its following actions :

(i) In 1949, Pakistan divided the illegally Pakistan occupied Jammu & Kashmir into separate administrative zones known as so-called “Azad Jammu & Kashmir” and the so-called “Federally Administered Northern Areas”;

(ii) Pakistan created an ‘Advisory Council’ for the “Federally Administered Northern Areas” in 1969. This Advisory Council was converted into the ‘Northern Areas Council’ in 1994 under the Legal Framework Order. In 1999, it was renamed as ‘Northern Areas Legislative Council’ through Legal Framework (Amendment) Order, which in turn was replaced by the Gilgit-Baltistan Empowerment and Self-Governance Order in 2009. Through such Order, Pakistan created a ‘Legislative Assembly’ and a ‘Gilgit-Baltistan Council’;

(iii) The Gilgit-Baltistan Order 2018 by Government of Pakistan brought about further changes, including authorizing the Prime Minister of Pakistan to legislate on over 63 subjects and the power to overrule any law passed by the Gilgit-Baltistan Assembly etc. It also invested the final authority to amend the Gilgit-Baltistan Order 2018, to the President of Pakistan instead of the Legislative Assembly of Gilgit-Baltistan.

(iv) Similar actions have been taken in so-called “Azad Jammu & Kashmir” by Pakistan.

(v) The State Subject Rule 1927, that was promulgated by the Princely State of Jammu & Kashmir, was abolished by Pakistan for the Gilgit-Baltistan Region, in order to permit outsiders to acquire land in this region of Pakistan occupied Jammu & Kashmir.

  1. Any change in domestic law on Jammu & Kashmir is within the framework of the Indian Constitution, the primary objective of which is to deliver good governance and promote socio-economic justice. The decision of the Government of India should be viewed in the right perspective, and not allowed to be distorted by a country that has not hesitated to use cross-border terrorism to serve its own ends.

***