Dear Muftis and Ab­dul­lahs, Don’t Live In Past!

The Day After - - COVER STORY - By ADv. KC Mit­tAl

The State of J&K has be­come a bat­tle­ground of un­war­ranted con­tro­ver­sies. Why should there be an is­sue about ac­qui­si­tion of prop­erty or sense of in­se­cu­rity lead­ing to com­mu­nal for­ti­fi­ca­tion, within the coun­try? Rather than pulling the strings in re­verse di­rec­tion or tak­ing sides, we must act for bet­ter­ment and har­mony. In ret­ro­spect, the gen­eral per­cep­tion cre­ated over the years that Ar­ti­cle 370 grants spe­cial sta­tus, which comes in the way of pur­chase of prop­erty, may not be true.

Cur­rently bat­tle lines drawn on Ar­ti­cle 35A, be­lat­edly af­ter 6 decades have added fuel to fire. Ba­si­cally, the cross­fire is an off­shoot of is­sues per­tain­ing to Ar­ti­cle 370. Anx­iously the present and for­mer CMs, vo­cif­er­ously op­posed the move but the re­ac­tion of CM Mufti drag­ging na­tional flag and Mus­lim ma­jor­ity are rather un­sa­vory. It re­flects a mind­set which is not con­ducive for the na­tion.

The se­quences of events need to be viewed in right per­spec­tive. Legally, the con­sti­tu­tional and ter­ri­to­rial as­pects of J&K, in­clud­ing cit­i­zen­ship stood set­tled long back. Un­ques­tion­ably, the State is an in­te­gral part of In­dia, a po­si­tion well doc­u­mented and finds place in 1st sched­ule of the Con­sti­tu­tion of In­dia, as one of the State of Union.

The merger of the State in In­dian do­main un­der In­dian In­de­pen­dence Act, 1947 was fi­nal, duly rat­i­fied by the State Con­stituent As­sem­bly. Fur­ther, Ar­ti­cle 3 of J&K Con­sti­tu­tion, 1957 cat­e­gor­i­cally pro­vides that “State of J&K is and shall re­main in­te­gral part of In­dia”, which can’t even be amended.

The ter­ri­to­rial bound­aries had been well iden­ti­fied and de­fined. Ev­ery inch of J&K within the sovereignty of the then Ma­haraja as on 15th Au­gust 1947 form part of In­dian Ter­ri­tory. This has been for­ti­fied by Ar­ti­cle-4 of J&K Con­sti­tu­tion as well.

Every­one, in­clud­ing sep­a­ratists must not try to dig the grave­yards, in fu­til­ity. Their con­duct dam­ages the growth of peo­ple of J&K. Un­for­tu­nately, over the years they grew with in­ter­nal and ex­ter­nal sup­port, rather than be­ing snubbed and iso­lated at the very thresh­old. Sur­pris­ingly, elected rep­re­sen­ta­tive un­der oath to up­hold sovereignty and in­tegrity of In­dia, defy the solemn af­fir­ma­tion brazenly?

Post-merger, of­fices of “Sadre-e-

Riyasat” and “the Prime Min­is­ter” were abol­ished sub­sti­tut­ing as “Gov­er­nor” and “Chief Min­is­ter” at par with other states, a mile­stone achieved in 1965.

It needs to be em­pha­sized that Pak­istan has no le­gal right or lo­cus standi over PoK in­clud­ing Baltistan, Gil­git or any part of erst­while ter­ri­to­ries of Ma­haraja’s dy­nasty. China wants to raise its head and med­dle, but J&K is not so vul­ner­a­ble. Even they oc­cupy ar­eas of erst­while ter­ri­to­ries of Ma­haraja. Both Pak­istan and China have no au­thor­ity to ne­go­ti­ate or en­ter into any agree­ment for cor­ri­dor or es­tab­lish any other project in these ar­eas.

The scope and ex­tent of pow­ers con­ferred by Ar­ti­cle 370 are un­doubt­edly ex­plicit & ad­van­ta­geous but not detri­men­tal, as pro­jected. It em­pow­ers the Par­lia­ment of In­dia to leg­is­late on mat­ters in Union or con­cur­rent list, with the con­sent or con­cur­rence of State Govt. Sim­i­larly the Pres­i­dent of In­dia gets au­thor­ity to is­sue or­ders in re­la­tion to these sub­jects. Let us not un­der­mine these pow­ers since they were the source of rad­i­cal changes over the years. We need to un­der­stand their im­pli­ca­tion legally and log­i­cally.

Amongst oth­ers, the most im­por­tant was “The Con­sti­tu­tion (Ap­pli­ca­ble To Jammu And Kash­mir) Or­der, 1954”, for short “Pres­i­den­tial Or­der, 1954” is­sued by The Pres­i­dent of In­dia. By this or­der pro­vi­sions re­gard­ing “cit­i­zen­ship of In­dia” con­tained in Part-II of the Con­sti­tu­tion of In­dia were ex­tended to J&K, ret­ro­spec­tively. As a re­sult, peo­ple of J&K be­came cit­i­zens of In­dia from Jan­uary 26th 1950 — an ex­em­plary step con­fer­ring In­dian cit­i­zen­ship bury­ing all other ques­tion about na­tion­al­ity. Whether some­one rec­on­cile or not, but con­sti­tu­tional man­date is bind­ing. The 2-na­tion the­ory is mis­di­rected and cyn­i­cal; CM Mufti also re­jected the 2-na­tion the­ory.

Ar­ti­cle 35A, at the cen­ter stage presently was part of Pres­i­den­tial Or­der 1954, but does it con­fer na­tion­al­ity other than In­dian cit­i­zen­ship. No­tice­able, the Con­sti­tu­tion of J&K in 1957 rec­og­nized “Cit­i­zen­ship of In­dia” and rightly so, as such no use flog­ging a dead horse.

The leg­isla­tive, ex­ec­u­tive and ju­di­cial pow­ers un­der­went sub­stan­tial changes due to pow­ers un­der Ar­ti­cle 370. In re­al­ity, the state cease to be a princely state and the sce­nario un­der­went com­plete trans­for­ma­tion from the con­di­tions as pre­vailed in 1927. Some per­sons want to live in past but they must change. We have trav­elled far ahead from those years. Three no­ti­fi­ca­tions dated Jan­uary 31st 1927, 20th April 1927 and June 27th 1927 is­sued by Ma­haraja Hari Singh to grant pref­er­en­tial and pro­tect pro­pri­etary rights to State Sub­jects of J&K, have un­der­gone a sea change, over the years. In­de­pen­dent and sep­a­rate States have lost their iden­tity and king­dom. In 1927, each State had their in­de­pen­dent con­trol and reg­u­la­tory mech­a­nism. A per­son trav­el­ling from one state to an­other was con­sid­ered as a for­eigner, but af­ter In­dian in­de­pen­dence, all coun­try men are In­dian cit­i­zen and not a for­eigner or out­sider in any state. No one can be treated as a stranger or an out­sider. This mind­set must change. These no­ti­fi­ca­tions have lost their rel­e­vance, in­tent and pur­pose, even en­force­abil­ity to pro­hibit pur­chase of prop­erty to a cit­i­zen of In­dia, from any part of the coun­try. Any in­sis­tence or claim would be con­trary to con­sti­tu­tion.

The State has a Leg­isla­tive As­sem­bly of 111 mem­bers in­clud­ing 24 seats for PoK and the con­duct of elec­tions en­trusted to the Elec­tion Com­mis­sion of In­dia. Proudly this set up gave right of fran­chise to ev­ery adult male and fe­male elec­torate.

No­tice­able, Ar­ti­cle 371, 371A to 371D, 371F to 371J ap­pli­ca­ble to other states con­tain “spe­cial pro­vi­sion” but 370 has no such cat­e­go­riza­tion. The gen­eral im­pres­sion that Ar­ti­cle 370 pro­hibits ac­qui­si­tion of prop­erty in J&K is fal­la­cious.

The ap­pli­ca­bil­ity of cit­i­zen­ship pro­vi­sions of Con­sti­tu­tion of In­dia and In­dian cit­i­zen­ship Act, 1955 to J&K is fi­nal and no con­fu­sion should be cre­ated. The term “per­ma­nent res­i­dents” used in Ar­ti­cle 35A do not con­fer cit­i­zen­ship, not any par­al­lel rights. Such an ap­proach or mind­set is cer­tainly mis­con­ceived. As from 26.01.1950, the en­tire com­plex­ion changed and the con­cept of state na­tion­al­ity came to end, as such the ear­lier no­ti­fi­ca­tions have be­come otiose.

Ex­am­in­ing from an­other an­gle, Ar­ti­cle 35A, stands su­per­seded by Ar­ti­cle 6 of J&K Con­sti­tu­tion, 1957, which duly rec­og­nizes cit­i­zen­ship of In­dia con­clu­sively. I am rather sur­prised why IPC, CrPC and CPC have not been made ap­pli­ca­ble so far. One of the ar­eas of con­flict is re­ten­tion of com­mu­nity bas­tion for what­ever rea­sons, but such ap­proach is against the spirit of the con­sti­tu­tion. Coun­try can’t per­mit any for­ti­fi­ca­tion on com­mu­nity lines in any part, to en­dan­ger the unity and in­tegrity of In­dia; a sit­u­a­tion on which the new gen­er­a­tion must fo­cus.

As re­gards J&K, some anom­alies and con­flicts should be ad­dressed by cen­tral and state gov­ern­ment ad­min­is­ter­ing jointly and in­voke pres­i­den­tial pow­ers to is­sue or­ders, rather than push­ing peo­ple to fight on roads. A good sense and vi­sion will help In­dia to main­tain peace and amity, a ba­sic re­quire­ment of any civ­i­lized so­ci­ety.

con­ver­sa­tions with op­po­si­tion lead­ers en­sure some pres­sure is built on Union gov­ern­ment. And that her gov­ern­ment gets some sup­port to ei­ther de­lay or find some mid­dle way to the cri­sis that oth­er­wise has the po­ten­tial to stoke more pas­sions in an al­ready sim­mer­ing Kash­mir val­ley.

Many are sug­gest­ing snap­ping ties with BJP would help her avert the cri­sis. But that won’t do. Her walk­ing away from the al­liance may or may not cause the gov­ern­ment to fall, but will cer­tainly have no bear­ing on whether the act stays or goes.

Ob­servers be­lieve she can do bet­ter by work­ing within the sys­tem to make peo­ple at the helm re­al­ize the reper­cus­sions if the cru­cial act is taken down.

More­over her quit­ting means Cen­tre faces no re­sis­tance from the state par­ties and can ac­tu­ally go ahead with its busi­ness, if at all it in­tends to. And since gov­er­nance and ab­so­lute gov­er­nance will lie with the Gov­er­nor - and he be­ing es­sen­tially a Cen­tre rep­re­sen­ta­tive - the ar­ti­cle can be­come a his­tory with­out much fuss and ado. It is an­other story that there would be wide­spread vi­o­lence, but what is done can­not be un­done.

So the op­tion of mov­ing out of gov­ern­ment would in­deed be a bad idea and will have no bear­ing on what stand the union gov­ern­ment takes on the ar­ti­cle, al­though the is­sue is tech­ni­cal and will be dealt with by the courts.

IS­SUES AROUND AR­TI­CLE 35A

An NGO named ‘We the Cit­i­zens’ has pe­ti­tioned the apex court seek­ing re­moval of Ar­ti­cle 35A on the ground that the re­stric­tion im­posed through its ad­di­tion to the Con­sti­tu­tion was be­yond the Pres­i­dent’s pow­ers un­der Ar­ti­cle 370(1)d.

The pe­ti­tioner has con­tended that “The Con­sti­tu­tion can be amended only by the Par­lia­ment as per pro­ce­dure clearly laid out in Ar­ti­cle 368,”

Sim­i­lar prayers, how­ever, were quashed al­most in­stantly by the apex court in 1956, 1961 and 1970 - while up­hold­ing the pow­ers of the Pres­i­dent to pass con­sti­tu­tional or­ders.

In a ma­jor de­par­ture, the Cen­tre this time around did not chal­lenge the pe­ti­tion though the Mufti gov­ern­ment has filed a counter af­fi­davit seek­ing its dis­missal. And the BJP at Cen­tre is un­will­ing to com­mit ei­ther way.

The ar­ti­cle was en­forced in J&K through the Con­sti­tu­tion (Ap­pli­ca­tion to Jammu & Kash­mir) Or­der, May 1954 is­sued by In­dia’s first pres­i­dent Ra­jen­dra Prasad. It was de­vised to pro­tect state sub­ject laws that had al­ready been de­fined dur­ing the Ma­haraja’s rule and no­ti­fied in 1927 and 1932.

AP­PRE­HEN­SIONS IN KASH­MIR

The Val­ley, which has a largely Mus­lim pop­u­la­tion, fears that by strik­ing down this pres­i­dent’s or­der, BJP and its af­fil­i­ates want to re­solve the Kash­mir is­sue through sweep­ing de­mo­graphic changes. And that, they think, will tell badly on the fi­nal res­o­lu­tion of the Kash­mir is­sue, if ever there is one.

The sep­a­ratists have al­leged in the past that New Delhi has sin­is­ter plans to set­tle non lo­cals in ar­eas of Jammu and Ladakh to start with, be­fore they con­cen­trate on Kash­mir - es­sen­tially to change the Mus­lim ma­jor­ity char­ac­ter of the state.

They have ac­cused the Cen­tre of plan­ning to build a “Hindu Vat­i­can” at ma­jor base camps of Amar­nath Ya­tra or “Is­rael type set­tle­ments” for non state sub­jects to al­ter the de­mog­ra­phy of the state.

Given the cur­rent pub­lic mood, the sep­a­ratists can quickly mo­bilise a 2016type ag­i­ta­tion that can be detri­men­tal to Mufti gov­ern­ment which is al­ready bat­tling a se­ri­ous re­bel­lion of sorts.

The peo­ple in val­ley of Kash­mir, Chenab com­pris­ing Doda, Kisht­war, Bader­wah and Ram­ban and Pir Pan­jal (Poonch

and Ra­jouri) - pre­dom­i­nantly Mus­lim pop­u­la­tion - are ex­tremely emo­tional about their iden­tity which they feel can be guarded through ar­ti­cle 35A and 370. So they will hit the streets if there is a threat to their ex­is­tence as they don’t ap­par­ently see Mus­lims out­side Kash­mir do­ing well at this point of time.

Mufti has warned Delhi of the huge con­se­quences in the wake of any fiddling with Ar­ti­cle 35A. She is al­ready on the back foot, given that there are daily re­ports of en­coun­ters, clashes and civil­ian killings. In fact, in the first seven months,134 mil­i­tants, 44 se­cu­rity men and 21 civil­ians have been killed in Kash­mir.

If push comes to shove and Cen­tre does not budge on 35A, Mufti will have no way but to quit. In fact, no Kash­mir-based party can ex­pect to stay rel­e­vant if this cru­cial act is taken away. Nei­ther PDP nor NC nor even smaller par­ties can af­ford to re­lax on this mat­ter. There is al­ready a fever­ish race to outdo each other on es­pous­ing this cause.

If PDP and NC are ex­tremely ner­vous, BJP, espe­cially its state unit,is in catch 22. BJP is rul­ing the state for the first time, and if its cen­tral lead­er­ship is seen as against Ar­ti­cle 35A, then it runs the risk of mak­ing it­self a pariah in J&K. No party, least of all the NC or PDP, would ever be ea­ger to form a gov­ern­ment with it. And the dy­nam­ics is such that you’d need one Kash­mir party to form a gov­ern­ment. That per­haps ex­plains why the state BJP is not that vo­cal.

Se­condly, the Val­ley will protest even more force­fully than how it did in 2016. While the main­stream in Kash­mir did not protest Burhan Wani’s killing con­sid­er­ing him an anti-na­tional, they won’t any such thing hold­ing them back this time.

Marginal­is­ing the main­stream would not be good news for Delhi as well in the long run as that seg­ment has been the sober­ing in­flu­ence.

The fight for 35A is big­ger for the main­stream than it’s for the sep­a­ratists who any­way “don’t be­lieve” in the Con­sti­tu­tion. For the com­mon folk it would be seen as a bat­tle for sur­vival.

How­ever, the big ques­tion be­fore all the po­lit­i­cal par­ties that par­tic­i­pated into the J&K As­sem­bly Polls, are they fol­low­ing the elec­tion man­i­festo they show­cased as tes­ta­ment if voted to power? In such case, big­gest shift ap­pears in PDP, BJP and Na­tional Con­fer­ence stand. What would make ‘Kash­miriyai­ites’ worry is cur­rent gov­ern­ment’s shift from their MoU for gov­er­nance, which was signed be­tween the Late Mufti Mo­ham­mad Sy­eed and the BJP. And Se­nior Ab­dul­lah has made the sit­u­a­tion fur­ther worst by tak­ing side of sep­a­ratists for petty po­lit­i­cal gains. Such a shift is noth­ing but mock­ery of the man­date which peo­ple of J&K had given in 2015 J&K As­sem­bly Polls.

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