10th Aug 2018 THE HINDU Editorial Analysis ha ii
Perils of historical amnesia: on Article 35A The controversial Article 35A of the Constitution is currently being challenged in the Supreme Court. Its critics have argued that the Article \ affords Jammu and Kashmir undue powers, particularly by preventing non-State residents to own land in the State In fact, the fundamental purpose of Article 35A, when it was introduced in 1954 as part of a Presidential Order, was the exact opposite: instead of giving the state a "special status", it was designed to take a from it y away The Article was introduced in May 1954 as part of a larger Presidential Order package, which made several additions to the Constitution (not just
..Article 35A). The overall gist of this Order was to give the Government of India enormously more powers over the State than it had enjoyed before For the first time, India's fundamental rights and directive principles were applicable to Jammu and Kashmir and the State's finances were integrated with India. Importantly, the Order also extended the Indian Supreme Court's jurisdiction over certain aspects of Jammu and Kashmir Just as crucially, the Order had come about only after the Jammu and Kashmir government had agreed to it and passed a similar legislation in its own Constituent Assembly, making it clear that these powers were Jammu and Kashmir's to give, not India's to take In fact, at the time of its introduction, the Order was celebrated in India as a great step towards bringing Jammu and Kashmir closer into the Union of
...ndia. Even the Hindu right-wing leaders had hailed it as a "commendable step". No eyebrows were raised over the minor issue of Article 35A, which made up a very small component of the Order The controversial Instrument of Accession signed by Maharaja Hari Singh in 1947 which brought the State into the Union of India gave New Delhi control only over Kashmir's defence, foreign policy and communications On all other matters, the State government retained powers. On the spectrum of autonomy, Jammu and Kashmir lay somewhere between, say, Bihar, a fully integrated State of India, and Bhutan, which enjoyed limited sovereignty under the protection of India India's weak grasp over Jammu and Kashmir was further complicated by New Delhi's international commitment to hold a plebiscite in the State to ..
....decide its eventual fate It is because of this weak India-Kashmir constitutional link that Sheiklh Abdullah became "Prime Minister" of Kashmir; the State had its own Constituent Assembly and flag: there were customs checks between India and the State; the Supreme Court did not have jurisdiction over key issues in the State; Kashmir militia was constituted as a separate force; and Srinagar tried to send its own trade commissioners to foreign countries With the commencement of the Indian Constitution in January 1950, New Delhi's powers over Jammu and Kashmir were defined more clearly through a Presidential Order (a predecessor of 1954 Order). However, just in the areas of defence, foreign affairs and communications was Jammu and Kashmir put on the same footing as the rest of India
On issues of commerce, audit, judiciary, elections and finance, there were considerable modifications. India's fundamental rights and directive principles were not applicable in Jammu and Kashmir at all Only in 1952, after the international clamour for an immediate plebiscite had somewhat subsided, did Jawaharlal Nehru invite Abdullah to discuss how India and Jammu and Kashmir could be more closely integrated. The result was the 1952 Delhi Agreement which, contrary to popular belief, still fell short of the 1954 Presidential Order For instance, the 1952 agreement did not finalise financial integration and required the fundamental rights and citizenship to be granted to the State's residents via the State Legislature Before the Delhi Agreement could be implemented, the situation was....
lil Any plans for an immediate Plebiscite were abandoned in 1954, which [ii] In 1953, Nehru faced a nationwide campaign from the Hindu right-wing [ii] In August 1953, Abdullah was arrested and replaced by Bakshi Ghulam ..altered radically because of three factors- strengthened New Delhi's hand demanding greater integration of Kashmir And finally Mohammed, who was far more open to integration with India So, in January 1954, New Delhi negotiated a new agreement with Bakshi, which was passed by the Kashmir Constituent Assembly in February, and eventually introduced through Presidential Order in May. However, it still left the State with enormous autonomy Foremost, all "residuary powers" rested with the State legislature. The State government could detain people who did not enjoy the right to..
...appeal to the Supreme Court. It also retained its controversial land reforms measures and the final authority over any alteration of the State's boundaries. Among its lesser known provisions at the time was Article 35A, a holdover from the colonial era It took another 70 years of successive governments steadily chipping away at Jammu and Kashmir's autonomy to bring it to today, when the only meaningful "special status" that it enjoys is Article 35A. Almost all of State's other autonomous powers have been subsumed by New Delhi Should Article 35A be removed, it must be removed as an expression of the will of the people, through a political process which includes the people of Jammu and Kashmir in the discussion. Or, in the very least, it has to be remembered as a broken promise that India had made to it decades ago
Does the anti-trafficking Bill address trafficking? Section 370 of the Indian Penal Code (IPC) was substituted with Sections 370 and 370A, which defined trafficking and laid out the punishment for it. However, mere criminalisation of trafficking is not enough :0 in the case of trafficking, data show that despite the 2013 law there has been an increase in the number of victims of human trafficking. It is to tackle this menace that the comprehensive Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, was passed. Instead of mere criminalisation, the Bill
....seeks to systematically combat the organised nature of trafficking The Bill ties together the approaches of prevention, rescue and rehabilitation to create a robust policy framework against trafficking. It places at its core the rights and welfare of victims of human trafficking There are aggravated forms of trafficking which have been introduced, such as trafficking for the purpose of begging, or bearing a child, or for the purpose of marriage or under the pretext of marriage by administering narcotic drugs, hormones, or chemical substances for the purposes of early sexual maturity, and so on. Under the Bill, prosecution under these offences will be made timely and efficient by special public prosecutors The Bill provides protection to witnesses. It also seeks to maintain the confidentiality of victims by recording their statements through video
The Bureau will also coordinate actions and enforcement by various bodies or authorities established under this Bill. There will be State and District Anti-Trafficking Committees which will arrange for appropriate training and sensitisation of functionaries of all personnel e in order to break the organised nexus, at the national and international levels, the Bill proposes attachment and forfeiture of property and to remit the proceeds of crime in the rehabilitation fund. It will also freeze bank accounts of those whose funds have been utilised to facilitate trafficking. By doing this, the Bill handicaps the organised trafficking networks The Bureau will also develop and monitor a database on every crime under this Act. Such systematic surveillance of offenders will, in about three years, not only help prevent trafficking but prevent it
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