Articles 370, 35A no longer valid
By denying Indians from other states to own property in Jammu and Kashmir, these laws violate the fundamental right to equality enshrined in Article 14 of the Indian Constitution.
The studied decision of the Supreme Court to expand the ambit of the petition challenging the validity of Article 35A of the Indian Constitution (that allows the state of Jammu and Kashmir to define state residency and its concomitant rights), by referring the matter to a three-judge bench in response to a plea by Attorney General K.K. Venugopal, that it warranted a “larger debate”, has stirred up a hornets’ nest and raised the hackles of Kashmiri political leaders.
National Conference leader Omar Abdullah angrily retorted that “if there is debate on (the legality) of the Article, you will have to debate the accession itself”. Chief Minister The possibilities of a parliamentary majority at 40 months in both Houses, tending towards 80%, through 2019 and beyond are both transformative and dynamic. This momentum describes a spectacular political consolidation and enormous personal popularity of the Prime Minister, with polls giving him over 70% approval ratings.
The Bharatiya Janata Party president, Amit Shah, Narendra Modi’s trusted engineroom strategist, also a Rajya Sabha member now, has not only delivered electoral wins in spades, but also grown tremendously in stature. And looking at the Union Cabinet and senior bureaucracy, there are still no corruption scandals from high places at all. This is in sharp contrast to the decade of the United Progressive Alliance (UPA).
Simultaneously, in the treasury, not only do we have around $300 billion in hard currency reserves, India is witnessing the early stages of strong, unprecedented dollar inflows. It is coming in, both as embedded direct investment and into the bourses. This is a well- earned endorsement and approval in an economically troubled world, with very few bright spots. The Ease of Doing Business Reforms will determine if this can grow exponentially from here.
The rupee, consolidating towards Rs 62 to the US dollar, is helping international confidence. Particularly, given GDP growth statistics of over 7% annually. But this currency strength needs to be sustained by determined policy measures. Ones that emphasise the virtues of cheaper imports over other considerations, important for a country hungry to catch up with the developed world.
It is precisely such depar- Mehbooba Mufti averred that in such an event there will be “no one to shoulder the Indian flag in the Valley”.
But what exactly is the significance of Article 35A? How does it relate to the more well-known Article 370? What are the implications of this Article to the country as a whole? And does questioning its validity counteract the legitimacy of Kashmir’s accession to India?
These are the questions central to the brouhaha sparked by the Article 35A controversy.
First, to allay any misperceptions regarding Article 35A and its relationship to Kashmir’s accession, we need to refer back to history and recapitulate the events that led up to the formulation of Article 370.
On 26 October 1947, with marauding Pakistan tribesmen closing in on Srinagar, Maharaja Hari Singh (who till then had refused to accede to India or Pakistan) signed the instrument of accession to India, allowing Indian soldiers to enter and defend his kingdom. This tures from the established policy of many years that are, and will continue to make the difference.
The large pool of IT talent could do much domestically to digitise the government, defence, spawn start-ups and develop cyber security.
Our international diplomacy, conducted personally by the Prime Minister in the lead, is yielding unprecedented cooperation and understanding from other nations.
More than ever before, the time may have come when we can dare to address the larger pending questions towards nation- building, going back much further than 40 months. These are indeed about second-stage structural reforms. But not just concerning the economy. These are reforms crying out to be made constitutionally, in the judiciary, the bureau- instrument of accession was exactly the same document that all other states had ratified, as indicated by the political scientist M.K. Teng in his book, Kashmir: The Myth of Autonomy: “In 1947, when Jammu & Kashmir acceded to India, the ruler of the State, Maharaja Hari Singh signed the same standard form of the Instrument of Accession, which the other major Indian States signed... was not subject to any exceptions or precondition...” (pp VII).
By signing the “same standard form of the Instrument of Accession”, J&K came to be included in the First Schedule that lists the States and Union Territories subject to Article 1 of the Constitution, which defines the territorial composition of India. In other words: the basic structure of the relationship between India and J&K is similar to that of other states.
So, let us be clear about one thing: the accession of J&K to India is full and final. It is non-negotiable, with or without Article 370, or its derivative Article 35A. These statutes came much later. Attempts to link any debate on Article 370 and Article 35A with the accession of India is a flawed, logically invalid argument.
The original accession of J&K (like all other states and princely kingdoms) was based on the stipulation that only matters of Defence, External Affairs and Commu- cracy and the executive, as much as to the legislature. But of course, Parliament being supreme, though the judiciary should perhaps read the 42nd Amendment to remind itself, it is legislation that can be the greatest single driver of change and betterment.
Still, with the advent of a proper “hanging judge”, Dipak Mishra as the new Chief Justice of India (CJI) at the month-end, we may see a new era dawning there too.
Electoral funding reforms, implemented recently with the cooperation of the Election Commission (EC), point the way forward in just one vital area, throwing up questions in other places.
What is the point of making laws that can’t be implemented due to the paucity of enforcers? Of depending on courts, with millions of pending cases clogging the system, a shortage of judges and opaque, nepotistic, cabalistic, selection procedures of the upper judiciary? Knowing that a both Houses Parliamentary majority is imminent, will the Supreme Court (SC), and the new, apparently like-minded CJI, cooperate in nications would be the preserve of the Government of India. While all other states decided to drop this restrictive covenant, and accept in toto the decisions of the Constituent Assembly, Jammu and Kashmir chose to differ, sticking to the original agreement instead, hence, Article 370, which outlines this special status.
Subsequently, several other provisions of the Indian Constitution were made applicable to J&K by an amendment inserted into the Constitution: a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the President of India, “in exercise of the powers conferred by” Clause (1) of Article 370 flushing the judicial selection system?
The last time Parliament legislated painstakingly on this, the SC threw it out on a technical weakness. And the Opposition let Parliament be snubbed rather than cooperate with the Government.
Elsewhere, when we are being militarily challenged by two of our most wellarmed neighbours, where is the security in being undermanned, under-equipped, technologically backward and cyber-security challenged? We are still abjectly dependent on imports, because of a poor defence manufacturing infrastructure, but this Government seems determined to accelerate this beyond recognition. When are we going to set right the general infrastructure and logistics for that matter, in order to turn Indian industry into a powerhouse?
Is the emphasis on electrification, water and the building of the Constitution, with the concurrence of the Government of the State of Jammu and Kashmir.
Article 35A was one of these additional changes and allows the J&K legislature to define who is a permanent resident and consequently who is eligible to vote, work for the state government, own land, and college admissions. Article 35A spawned a set of laws that were discriminatory in nature. Non-permanent residents are denied all these rights listed above.
The petition challenging the validity of Article 35A filed by an NGO, We the Citizens, in 2014 objects to the Article both on procedural grounds (only the Parliament and not the President has the right to of roads, highways, bridges, tunnels, ports, dams working hard enough towards this? Are we going to see the implementation of simultaneous elections, to the states and the Centre, if not the municipalities and panchayats too? This is a vital need for consistent governance, but interrupted presently by a system in perpetual election mode. But those who think they will lose are not in favour. But can they stop it anymore?
There has been constant bloodshed and turmoil in the Kashmir Valley from 1947. But now, are we in touching distance of getting at the root causes? Will the vexed question of the modification of Article 35A of the Indian Constitution that grants special residency and property rights to J&K, be taken up in Parliament? The Valley politicians are threatening blue murder, but what more can they throw into the fray with- amend the Constitution) and constitutional validity.
Listed below are some of the practical implications of these discriminatory laws:
1. By denying Indians from other states to own property in J&K, these laws violate fundamental right to equality enshrined in Article 14 of the Indian Constitution that states: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
2. A Kashmiri woman marrying a non-permanent resident or outsider loses all succession rights, while a Kashmiri man does not. Char Wali Khanna, a Supreme Court lawyer and a native of Kashmir, in her out foreign help of a sizeable order? The Hurriyat is also under the lash now. Will Article 370 under which J&K is run, be abolished at last?
Will India adopt the Gregorian Calendar year for fiscal and budgetary purposes, in line with most of the world today?
Will the Ram Temple at Ram Janmabhoomi at Ayodhya, on the site of the erstwhile Babri Mosque, hanging fire since 1992, finally be built?
Will labour reform, a political hot potato, now go through? We are, after all, contemplating the privatisation of Air India, despite the looming battles with its entrenched trade unions.
The Land Acquisition Act modification was a progenitor, though the Opposition successfully blew substantial holes in it, rendering it less than ideal.
The Government man- petition against Article 35A (now tagged on to the original petition), states the rules restricted the basic right of a Kashmiri woman to marry a man of her choice, by not giving her children any right to property if the husband is not holding a Permanent Resident Certificate (PRC): a gender inequality not consistent with Article 15 that prohibits discrimination on basis of religion, caste, race or place of birth.
3. Supreme Court lawyer and India’s Finance and Defence Minister Arun Jaitley, commenting on the plight of refugees who migrated to J&K during partition and who are now Indian citizens but not “state subjects”, states: “The effect of this is that these citizens of India are not entitled to the protection of Article 14 (equality), Article 15, Article 16 (equality of opportunity in matters of public employment and reservations), the fundamental rights under Article 19 including the right to free speech...”
4. Also, this gives rise to a Quixotic situation, wherein a Pakistani citizen can buy property in J&K, while a legitimate Indian citizen cannot; the J&K Constitution grants residency rights to Kashmiris living in Pakistan Occupied Kashmir, overriding security concerns.
So, can a state which is an integral part of India enact laws that violate constitu- aged to put the teeth into the Benami Properties Act and has nabbed a large number of culprits, Lalu Yadav and family being amongst the most celebrated, confiscating their properties for the first time. But every such move— casting a dragnet around “shell companies” is another instance—is portrayed as stuntmanship, by those affected, and mindless disruption of a direction-less Government. Still it is amazing how much did get done.
The Opposition is in a particularly unforgiving mood as it contemplates its growing irrelevance and powerlessness. It was also caught by surprise and badly done by in their cash hoards by demonetisation. But the number of taxpayers has grown by 25%.
The bureaucracy, converted into accomplices and handmaidens of the political class from the days of Indira Gandhi, are most startled at being held accountable for their performance. The rules of the nexus between political over bosses and the bureaucracy have been thrown out in a new attack on corruption. A number of civil servants have been prosecuted. More of the same is expected.
Still, the Modi administration, determined to usher in the much ridiculed achhe din, has been hamstrung on its legislative agenda from the very start. But now, from every direction, the straws in the wind indicate this is about to change. Earlier the table was set, but not the stage. tionally sanctioned fundamental rights? The answer is a big no. That brings us to the ultimate question: Is the reversal of Article 370 (read Article 35A as well) legally and constitutionally impossible, as naysayers routinely claim. Jai Anant Dehadrai, a Supreme Court advocate, disagrees (TOI, 31May 2014): “Equally ludicrous is another suggestion from Omar Abdullah, who argues that the original Constituent Assembly be resurrected to debate this issue… The late professor M.P. Jain whose book is considered one of India’s foremost texts on Constitutional Law, makes it abundantly clear that since no such ‘Constituent Assembly’ exists anymore, any limitation sought under Article 370(3) would cease to operate and the entire provision would be open to amendment under the regular route available to Parliament under Article 368.”
In conclusion, Article 370 (along with Article 35A) is an anachronistic decree that has outlived its utility, militates against India’s sovereignty, and discriminates against both Indians and Kashmiris by mutually excluding each other from syncretic growth. It is redundant, can be debated and constitutionally discarded.
It was envisioned as a “temporary provision” and that is how it should be treated.
Important legislation, other than “money bills” that do not need Rajya Sabha concurrence, were routinely blocked and sent back to the Lower House for further consideration, or deflected to the limbo of long-winded Parliamentary Committees. So much so that the Government has had to resort to ordinances in several instances. And this has been happening on a more or less confrontationist basis, albeit with diminishing success as Opposition unity unravelled.
The GST law is indeed a prime example of this Government’s success before it had anything like a majority in the Upper House. Held up for over a decade, it was passed in the face of trenchant filibustering, disruption and cries of foul play. But barring this single great achievement and a few lesser but significant acts such as the Bankruptcy Law passed as a Money Bill, other legislation has been stymied, irrespective of merit. Disrupting both Houses of Parliament, sloganshouting, rushing to the Well, disrespecting the Speaker, throwing paper missiles, have all been widely used.
The big point now however, is that there will most likely be a majority in the Rajya Sabha by April 2018. It will be presided over by a pugnacious Rashtriya Swayam Sevak (RSS)/BJP stalwart, Muppavarapu Venkaiah Naidu, as Vice President and ex officio Chairman. Naidu will probably not brook gratuitous indiscipline. And Amit Shah’s presence there will likely help focus the minds of the BJP flock too.
Narendra Modi will have, on his part, another RSS/BJP pillar in Ram Nath Kovind at Rashtrapati Bhavan.
The stage therefore may well be truly set for 2019 and beyond.