33. Article 370 & Procedure for Amendment of Constituion

SPECIAL PROVISIONS

The Indian Constitution protects certain sections of the society which have faced injustice historically. In the similar vein, the Indian Constitution protects certain States to immune from the Constitution under Part XXI titled ―Temporary, Transitional and Special Provisions‖ from Articles 369 to 392. In this Part, the Indian Constitution provides temporary provisos to the State of Jammu & Kashmir (Art 370). The Indian Constitution also provides special provisions to State of Maharashtra and Gujarat (Art.371), Nagaland (Art. 371A)Nagaland (Art. 371A), Assam (Art. 371B), Manipur (Art. 371C), Andhra Pradesh (Art. 371D), Sikkim (Art. 371F), Mizoram (Art. 371G), Arunachal Pradesh (Art. 371H), Goa (Art. 371-I) and Karnataka (Art. 371 J). The object behind to provide ―special‖ and ―temporary‖ provision to the certain States was to protect these State‘s autonomy in some areas.

LIMITS ON POWERS OF PRESIDENT

The issue of consideration is, besides giving assent to the Bill passed by the Both Houses (Lok Sabha and Rajya Sabha), President of India has sole legislative power under article 123 to make ordinance when either house of the Parliament is not in session. These legislative powers of the President have only six-month effect; in other words, it is the authority to make laws without discussion in the Parliament in urgency for a shorter period. It is an exception in the making law not a general rule or a permanent measure. In the Constitutional scheme, the President of India has no legislative power to amends the Constitution by bypass the democratic process. President‘s legislative, executive and judicial power is subjective to aid and advice by the Council of Minister (Art 74), but all these powers do not allow to the President to go beyond the spirit of the Constitution.

POWERS OF PRESIDENT VIA ARTICLE 370

370. Temporary provisions with respect to the State of Jammu and Kashmir

Unparalleled Special Status to Jammu & Kashmir

Power of Parliament to make laws for the state is limited to – external affairs, defence, communications and ancilliary matters.

Such other matters in the said Lists (Union and Concurrent) as, with the concurrence of the Government of the State, the President may by order specify.

1 (d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify

Nowhere in the Article 370 mentions that President of India has the power to amend the Constitution or insert a new Article in the Constitution? The Article 370 only states that the President can make any exceptions and modifications with the concurrence of the Government of the State. Subclause 1 (d) of the Article 370 states that: ―Such power of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify.‖

POWERS TO AMEND THE CONSTITUTION

Article 368 is the only way to amend the Constitution, not the President. The marginal note of Article 368 States ―Power of the Parliament to amend the Constitution and procedure, therefore‖ which means it is the Parliament that has the power to amend the Constitution.

UPSC GK: Rice cultivation in J&K (ECOLOGY / ENVIRONMENT)

The Jammu and Kashmir government has directed farmers in the state not to sow paddy, as it fears that the region may face water shortage in the coming months. The direction comes after the state received less than normal snowfall and rain in the winter of 2017, and in the initial days of spring this year. If the situation aggravates, it may also lead to a drinking water crisis in many villages, as streams may run dry in the course of time.

To avoid any crisis, the government has forewarned farmers to grow crops that require less water in summer. In the Valley, farmers do not use groundwater for irrigation purposes, thereby making paddy fields dependent on surface water. The Irrigation and Flood Control Department provides water to 2.5 lakh hectares of land. But, why has the situation come to such a pass, and what are the alternative options available to farmers?

What does the circular say?

The government has issued a circular informing farmers about the dry spell that the state has been witnessed for the last several months. It has stated that the Irrigation Department will not be in a position to provide water for paddy fields, and as a result, farmers should sow crops which require minimal water.

Which districts have been warned?

The advisory has been circulated in six districts in Kashmir including Baramulla, Kupwara, Budgam and Pulwama. The circular is also applicable to areas which receive water through streams originating from mountains, forests, and lift irrigation schemes.

Is it mandatory for farmers to follow the circular?

Yes. In such a situation, the government can use force to desist farmers from sowing paddy. In the peak of summer, when farmers will require water for agricultural purposes, and if the irrigation department fails to supply it, there may be violent protests, that may disturb the law and order situation in the state. However, officials say that this circular is restricted to providing advice only.

Why has such a circular been issued?

The government was compelled to issue the circular after reviewing the current water levels in different rivers and streams across the state. The water level in Jhelum, which should have been 1.5 meters (five feet), now stands at a 1.3 meter. Although abundant rainfall in the coming months could help improve the situation, such a relief would be temporary. “We want to save our farmers from losses, as the water discharge in rivers and streams is very low this time due to a dry spell in the Valley from past eight months, especially in winter months,” the chief engineer of the Irrigation Department said.

How less has been the rain and snowfall in Kashmir compared to earlier winters?

As per data published by the meteorological department, the state has received deficit rainfall for the last three years. While in the first three months of 2016, Kashmir received 265 mm rainfall; in 2017, the state received 494 mm rainfall for the same period. However, the average rainfall for this period is 627 mm. In the last two months of 2017, the Valley received lesser rainfall in comparison to the three previous years. According to Met officials, this is one of the prolonged dry spells the state has seen. A similar situation was last witnessed in 2000.

What has caused the dry spell?

Experts say that the water scarcity is linked to global warming. In the last few winters, day temperature recorded in Kashmir has been above normal. In February and March (2017), day temperature was higher in comparison to the same period the previous year. A change in pattern of snowfall has also been noticed.

Has such a circular been issued earlier?

Similar circulars were issued in 1957 and 2000, when Kashmir witnessed a drought-like situation. However, during these periods, farmers did not pay heed to advisories, and suffered huge losses.

How important is rice to Kashmir’s economy?

In Kashmir, rice is the staple food. Paddy is cultivated in around 1.41 lakh hectares of land. Nearly 88 lakh quintals of rice are produced every year, and the industry is worth Rs 400-500 crore.

What other crops can farmers now grow?

Farmers can grow maize, cereal, and other short-duration crops. Instead of one, they can grow more than two crops.

What are the different varieties of rice that are grown in Kashmir?

Around eight to ten varieties of rice are grown in the Valley. These varieties are considered among the best in the world due to the use of surface water (instead of groundwater), and the minimum use of fertilisers. The varieties include K332, Jhelum, Shalimar Rice 1, Shalimar Rice 2, Shalimar Rice 3, Mushk Budji, Kamad and Zag or Red Rice.

Apart from paddy, farmers in Kashmir also grow mustard as a second crop. Will that be impacted?

No, mustard requires less water. However, the production will be hit due to the prolonged dry spell. There are reports that farmers are turning their paddy fields into orchards or housing colonies. In 2002, around 1.70 lakh hectares of land was used for cultivating paddy. The area fell to 1.58 lakh hectares in 2012, and currently, 1.41 lakh hectares is under paddy cultivation. In the last 16 years, the Valley has lost around 29,000 hectares of land.

Credit: Indian Express Explained (http://indianexpress.com/article/explained/why-srinagar-has-advised-farmers-against-cultivating-paddy-this-year-5138739/)

UPSC GK: Who are Gujjar Bakarwals II (POLITY)

“Usey apney haath aur paun mein pata nahin tha, ki mera daayan haath kaun sa hai aur baayan haath kaun sa hai. Kabhi usney yeh nahin samjha ki Hindu kya hota hai aur Musalmaan kya hota hai (She couldn’t tell her arms from her legs, couldn’t tell which hand was right and which left. She never thought who was a Hindu, who a Muslim).”

The words of a distraught father on his daughter’s brutal gang rape and murder, as told to The Indian Express, sums up the disturbing angle behind one of the most gruesome crimes the nation has seen in recent times. The Bakarwal community, to which the eight-year-old belonged, is a Muslim pastoral tribe situated in Jammu and Kashmir, and along with the other tribal Muslim Gujjar group called Banihara form the third largest community in the state. While the Baniharas deal in dairy farming, the Bakarwal herd sheep and goats. A nomadic tribe, the Bakarwals are often recognised by the hundreds of kilometers long journey they take with their cattle every summer to Kashmir and Ladakh and back to Jammu in the winters. While the incident and what followed, has revealed much about the communal divide that exists in the valley, it is interesting to reflect upon the religious identity of the Bakarwals, wherein we find an interesting blend of Hindu-Muslim theological systems.

Bakarwal Gujjars and a Hindu-Muslim identity

The Bakarwals are known to be part of the larger ethnic group known as Gujjars who dominate large parts of Northern India, Pakistan and Afghanistan. Interestingly, the Gujjars in different parts of the subcontinent variously follow Islam, Hinduism and Sikhism. In Jammu and Kashmir, the group practices Islam, but was listed as a Scheduled Tribe in 1991. However, despite professing the Islamic faith, anthropological study of the community shows that they have retained large parts of the Hindu belief system followed by Gujjars across the country.

The Gujjars of Jammu and Kashmir, essentially the Baniharas and the Bakarwals, are a migratory group. It is difficult to ascertain the precise date of their migration, but a plausible theory is that they moved to the hilly terrain from the plains of Punjab in response to insufficient grazing facilities, increasing population and religious persecution. Another theory also states that the Gujjars moved to Jammu and Kashmir from Rajputana and Kathiawar owing to a serious famine that broke out in the region.

Having broken away from the Gujjar population in the plains, however, they retained intrinsic cultural ties with them nonetheless. “They have a common history, culture, ethnic affinities beliefs and languages with the Hindu, Sikhs and Muslim Gujjars of the Indian plains,” writes Professor K. Warikoo in his work, “Tribal Gujjars of Jammu and Kashmir.” It is interesting to note that the Muslim Gujjars of J&K continue to follow the Gotra system with names of Gotras being the same as that among the Hindus. They believe that their ancestors were Hindus and hence they share the same blood and history with their Hindu counterparts.

Warikoo goes on to explain in his work that “religion has had little impact on the Gujjar brotherhood and affinity. The women folk of Jammu and Kashmir Gujjars still perform traditional practices in their homes and also celebrate Baisakhi, Lori and Goverdhan festivals.” It is noteworthy that the popular Hindu mythological figures like Lord Krishna, Rama and Sita are also as much a part of the religious identity of the Bakarwal Gujjars.

But keeping alive a Hindu belief system in their identity has not prohibited the group from following Islam as well. They swear allegiance to the local Pir, or a Sufi spiritual guide of the respective area in which they move about. They also aspire to visit sites of religiosity associated with Sufi Pirs like Hazrat-e-Naga-Baji Saheb, Khanyar in Srinagar and Nariyan in Rajouri.

Bakarwal Gujjars and a history of alienation

The fluidity in Bakarwal religion, however, has often resulted in an alienation of the community, particularly when their tribal identity has come in conflict with their religious identity. Troubled by the tussle between the two, the Bakarwal Gujjars have often complained of being under-represented in government services, educational institutions, and also the census. Since 1975 a number of welfare schemes came into existence for them. A major breakthrough for the Gujjars came on April 19, 1991 when after years of protest, they were listed in the Scheduled Tribes, thereby making available to them the rights conferred upon other tribes of India.

But the welfare schemes for the Gujjars were never fully implemented and they continued to face discrimination, particularly from the urban Kashmiri population. In recent years, the community has been facing the wrath of Hindutva forces, especially the cow-protecting groups who target their mode of living that is dependent on cattle.

The gangrape incident follows the ongoing tussle between the community members and the BJP-PDP government’s land eviction drives in the region. In the recent past, BJP’s Chaudhury Lal Singh has promised the retrieval of hundreds of forest lands, a move that the Bakarwals believe would take away their traditional rights on the forests. Reportedly, since the Bakarwal Gujjars are Muslims, the BJP is feeding into communal fears by propagating the idea among the Hindu population of the state that the former is skewing up the area’s demography and that they are the ones responsible for the encroachment of large sections of forest areas there.

The Bakarwal Gujjars, on the other hand, continue to fight against such allegations, emphasising upon the patriotism they have exercised since the country’s independence. It is noteworthy that these are the same people who stood staunchly loyal to Maharaja Hari Singh during the Pakistani aggression of 1947. Yet again, when India fought Pakistan in 1965, the Bakarwal Gujjars were the ones to have extended a helping hand to the Indian army, restoring the territorial integrity of the country.

Credit: Indian Express Research (http://indianexpress.com/article/research/kathua-gang-rape-murder-bakarwal-muslims-jammu-kashmir-5136293/)

UPSC GK: Who are Gujjar-Bakherwal? (POLITY)

The Indian Express explains the events and divide leading to protests targeted at a nomadic group.

Why are lawyers’ groups protesting in Jammu?

The protests are over a number of issues that underline a communal divide in Jammu. Among these is a police chargesheet, which concludes that the alleged rape and murder of an eight-year-old Bakherwal girl in a Kathua village was committed to evict the Bakherwal, a nomadic Muslim group; the alleged motive has triggered protests. The protesters have also demanded a rollback of a purported decision by the state government on Gujjar-Bakherwal rights to forest land, alleging a conspiracy to change the demography of Jammu.

What traditional rights do the Gujjar-Bakherwal have over forest lands in J&K?

The two communities, together 11% of J&K’s population, are the single largest Muslim group and were together designated a Scheduled Tribe in 1991. Both groups are pastoral. The Gujjars are in the dairy business, and settled in several parts of Jammu through to the Chenab Valley. The nomadic sheep and goat-herding Bakherwal migrate with their flock to Kashmir and Ladakh in the summer and to Jammu in the winter, camping at forest sites they have used for centuries.

What has happened now?

Recent eviction drives have left both communities fearful that the PDP-BJP government is planning to take away these traditional rights. The forest portfolio is with the BJP’s Choudhary Lal Singh who has promised to retrieve hundreds of kanals of “encroached” forest land and impose a blanket ban on cultivation inside forests. In response, Bakherwal and Gujjar leaders have demanded that the central Forest Rights Act, 2006, be extended to J&K as well. The ST and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act provides for ownership and access rights to forest dwellers by giving them a right to live in the forests and carry out their traditional occupations for livelihood, access to collect, use and dispose of Minor Forest Produce, conservation and management of forest resources, and the right of access to biodiversity and community rights.

How do the ruling parties stand?

Ironically, this is the one issue on which the BJP holds dear the primacy of Article 370. With both Gujjars and Bakherwals being Muslims, the party is feeding into fears of Jammu’s Hindu community that the two communities are changing the demography. On the other hand, the PDP views these two communities as a constituency. Tribal Affairs Minister Chaudhary Zulfikar is a Gujjar.

Earlier this year, the government decided to come out with a tribal policy. Following a meeting of the Tribal Affairs Department on February 16, chaired by Chief Minister Mehbooba Mufti, news spread on social media that she had “taken a historic decision” and provided a “sigh of relief” to J&K’s nomadic population by directing that they should not be evicted from forest land. In Jammu there was widespread anger that encroachment of forest land by the two Muslim groups had been green-lighted. Later, an RTI activist in Jammu circulated the purported minutes of the meeting, this time with the accusatory comment that the PDP was implementing its “Kashmir-centric agenda” in Hindu-dominated Jammu.

What did the purported minutes say?

That it had been decided not to dislocate tribals until formulation of a tribal policy. In cases where their dislocation was considered necessary, according to the purported minutes, it would be carried only in prior consultation with the Tribal Affairs Department. Signed by Special Secretary (Tribal Affairs) Mohammad Sharief Choudhary, the “minutes” also recorded the CM’s instruction to all police and district authorities not to provide any police protection for eviction of tribals without approval from the department. The meeting was attended by PDP minister Zulfikar and MoS (Forests) Ajay Nanda (BJP).

What has the government said of this?

Officially, the government has been silent on the minutes. But after the controversy broke, all BJP ministers except deputy CM Nirmal Singh went to meet the CM, where Nanda gave a written submission that no such matter had come up for discussion in his presence. Later, at BJP headquarters, Nanda and Health & Medical Education Minister Bali Bhagat claimed the CM too had said no such discussion had taken place and there was no issue of her giving any such instruction to police and deputy commissioners. The ministers declared that in any case, the minutes of the meeting, in the absence of subsequent government orders, hold no legal validity. No orders have been issued.

Then why the protests even now?

In a state where both Hindus and Muslims read between the lines of any government decision seen to be facilitating one community or the other, not many were convinced by the BJP ministers’ clarification. There has been no official explanation for why the purported minutes record decisions that ministers claim were never taken.

What are Gujjars-Bakherwals saying?

That the eviction drives against them are driven by local misconceptions that they are responsible of large-scale encroachment of forest land. They say they have been on the side of Indian security forces since 1947. In Kashmir, they are perceived as helping security forces against militants. Tribal leaders have demanded a government white paper identifying those encroaching upon forest and state land and take action; they say these are influential people, both Hindu and Muslim, who connived with officials and sold such land to those who had migrated to Jammu during the militancy-hit 1990s. Rather than a tribal policy, tribal leaders have sought laws safeguarding the rights of nomads over forests.

Credit: Indian Express Explained

Short Takes: Kashmir Unrest

Topic: Kashmir Unrest

"People of Jammu and Kashmir had enormous faith in Atal Bihari Vajpayee….he used to say 

'Insaniyat, Kashmiriyat and Jamhooriyat are key to progress of Jammu and Kashmir'. We have to take the state to new heights through these pillars."

- PM Narendra Modi

{Translation: Insaniyat (Humanism), Jamhooriyat (Democracy) and Kashmiriyat (Kashmir's age-old legacy of Hindu-Muslim amity)}

Na bandook se na goli se, baat banegi boli se...

- Mufti Muhammad Saeed

(Former CM of Jammu and Kashmir)

Democracies are, at their core, processes for peoples with different views and interests to negotiate civic arrangements; riot police are a symptom of their breakdown, not a solution.

Who was Burhan Wani?

Burhan Wani was a famous militant leader in the Kashmir Valley.

• ·     22-year-old “commander” of the Hizb-ul-Mujahideen
• ·     Credited with mobilising a new generation of the disaffected in Jammu and Kashmir.
• ·     His engaging manner had turned him into a legend before his death, as he coasted on personal charisma and social media smarts to become the ‘poster boy’ of a new phase of Kashmiri militancy that is homegrown.
• ·     Wani was gunned down in an encounter by the security forces in the district of Anantnag. This led to the start of massive protests in the valley.
• 
  

Why did protests emerge after his encounter?

Burhan was able to establish a connection with hundreds of youth in the Kashmir Valley.

Short Term Reasons

After having got their man, the security forces failed spectacularly in managing the situation.

In the violent aftermath of his death, young men and women have taken the fight to the security forces on the street.

Long Term Reasons

Young men and women have become more embittered and radicalised recently. Their angst is directed at draconian laws that let military abuses on civilians go unpunished.

There is a return to home-grown insurgency, with religious radicalisation acting as a force multiplier this time. The latest uprising in Kashmir was waiting to happen for some time.

Trust deficit between the Valley and New Delhi has been eroded over the years and has now reached breaking point. For too long, Kashmiris believed that the Centre would address their grievances politically. They believed that in 2008, when civilians were killed, and again in 2010, when 116 young persons were killed.

There was a glimmer of hope in 2010, when the Centre had tried to address the anger then by sending a team of interlocutors, who painstakingly spoke to several stakeholders and turned in a report that referred to Kashmir as a “dispute”. No one, however, paid attention to the recommendations in the interlocutors’ report.

How the situation has evolved from protests of 2010 to the 

current cycle of protests?

In 2010, the stone-wielding youth were protesting against a fake encounter in which three innocents were killed. The demand for justice lay at the heart of the unrest. This time, the anger is widespread and the enraged youth have no demands. They appear fed up with New Delhi’s unwillingness to accept the very political nature of the Kashmir problem.

Now they are protesting for the encounter of a militant commander!!

How should the situation now be handled? 

Or, in future, if such a situation emerge, how should it be 

handled? What lessons can be learnt from the present episode?

It is imperative that any response should be measured and never grossly disproportionate to the cause of action — forgetting this lesson in Kashmir has time and again led to the fuelling of a further cycle of protests, to attracting more impressionable and aggrieved youngsters to attack symbols of authority.

In future multi-pronged approach can be adopted:

Security Measures

Use of Pellet Guns to control the attacking mobs have led to many civilians being killed or injured in the eye this month, with a high percentage having possibly lost vision altogether. Appropriate measure of force must be used to control the rioting mobs.

Inadequacies of Security Measures:

But these protests cannot be completely controlled by brute force.

When tens of thousands of Kashmiris hit the streets in mourning for a fallen militant, there is a spectrum of political opinion that presents itself. They can be dispersed with pellets. But if ‘mainstream’ politics does not speak to them, if their arguments are not heard patiently to be countered or fleshed out, as the case may be, the calm that eventually obtains will be an illusion.

To put the mourners of Burhan Wani in a with-us-against-us binary would, as Omar Abdullah has said, give him a recruiting power from beyond the grave. WE MUST SPEAK WITH THEM.

Political Dialogue

The Central and State governments have reached out to the Opposition and separatist leaders to dissuade young Kashmiris from street violence. But appeals for calm must be strengthened with a demonstrable capacity for a political conversation.

Government must show a willingness to speak especially with the All Parties Hurriyat Conference. Speaking with separatists is not something unheard of Indian politics. This is something that the Indian state has long done, witness in states from Manipur to Punjab to Nagaland.

New Delhi should push Kashmiri separatists to move beyond slogans, and spell out precisely what democratic rights they seek, so a conversation can begin on whether or not these can be met within the Indian Constitution.

Constitutional Solution

With some imagination, ways can be found to grant greater autonomy with no threat to India’s sovereignty. That was the case up until 1953, after which the state’s autonomy was continuously diluted. The time has come to go to the next level on Kashmir, which is bleeding India, tarnishing its image both internally and externally, providing ammunition to Pakistan and alienating a whole generation in the state. A government that cares for its people will have to walk the talk.

The 2010 team of interlocutors in its report had said: “We recommend that a Constitutional Committee (CC) be set up to review all Central Acts and Articles of the Constitution of India extended to the State after the signing of the 1952 Agreement.” No progress has been made since then.