35A does not give par­al­lel rights to Kash­mir

The Sunday Guardian - - World -

The sen­si­tive bor­der state of Jammu and Kash­mir has be­come a bat­tle­ground for 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 a 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, have added fuel to the fire af­ter six decades. Ba­si­cally, the cross­fire is an off­shoot of is­sues per­tain­ing to Ar­ti­cle 370. The se­quence of events needs to be viewed in the 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 that finds place in the 1st Sched­ule of the Con­sti­tu­tion of In­dia—as one of the States of the Union. The merger of the state with In­dia un­der the In­dian In­de­pen­dence Act, 1947 was fi­nal, duly rat­i­fied by the State Con­stituent Assem­bly. Fur­ther, Ar­ti­cle 3 of J&K Con­sti­tu­tion, 1957 cat­e­gor­i­cally pro­vides that the “State of J&K is and shall re­main an in­te­gral part of In­dia”. This can­not even be amended. The ter­ri­to­rial bound­aries were well iden­ti­fied and de­fined. Every inch of area within the sovereignty of the then Ma­haraja as on 15.08.1947, forms a part of In­dian ter­ri­to­ries. This has been for­ti­fied by Ar­ti­cle 4 of the J&K Con­sti­tu­tion as well.

Post- merger, the of­fices of the “Sadre- e-Riyasat” and “the Prime Min­is­ter” were abol­ished, sub­sti­tuted with “Gov­er­nor” and “Chief Min­is­ter” at par with other states—a mile­stone achieved in 1965. The scope and ex­tent of the pow­ers con­ferred by Ar­ti­cle 370 are un­doubt­edly ex­plicit and ad­van­ta­geous, but not detri­men­tal, as pro­jected. It em­pow­ers Par­lia­ment of In­dia to leg­is­late on mat­ters on the Union or Con­cur­rent List, with the con­sent or con­cur­rence of the state govern­ment. Sim­i­larly, the Pres­i­dent of In­dia gets the 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 the “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 26.01.1950. This con­sti­tu­tional man­date is bind­ing.

Ar­ti­cle 35A was part of the Pres­i­den­tial Or­der 1954, but does it con­fer na­tion­al­ity other than In­dian cit­i­zen­ship? The Con­sti­tu­tion of J&K in 1957 recog­nised “Cit­i­zen­ship of In­dia” and there is 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 ceased to be a princely state and the sce­nario un­der­went com­plete trans­for­ma­tion from the con­di­tions pre­vail­ing in 1927. Some per­sons may want to live in the past but they must re­alise that we have trav­elled far ahead. Three no­ti­fi­ca­tions dated 31.1.1927, 20.4.1927 and 27.6.1927 is­sued by Ma­haraja Hari Singh to grant pref­er­en­tial and pro­tect pro­pri­etary rights to state sub­jects of J&K, have un­der­gone sea change over the years. In­de­pen­dent and sep­a­rate states have lost their iden­ti­ties and king­doms. In 1927, each state had their in­de­pen­dent con­trol and reg­u­la­tory mech­a­nism. A per­son trav­el­ling from one state to an­other was con­sid­ered a for­eigner, but af­ter In­de­pen­dence, all coun­try­men are In­dian cit­i­zens. No one can be treated as a stranger or an out­sider. These no­ti­fi­ca­tions have lost their rel­e­vance, in­tent and pur­pose, even en­force­abil­ity to pro­hibit the pur­chase of prop­erty by a cit­i­zen of In­dia in any part of the coun­try. Any in­sis­tence oth­er­wise would be con­trary to the Con­sti­tu­tion. The state has a Leg­isla­tive Assem­bly of 111, mem­bers in­clud­ing 24 seats for PoK. The con­duct of elec­tions is en­trusted to the Elec­tion Com­mis­sion of In­dia. No­tice­able, Ar­ti­cles 371, 371A to 371D, 371F to 371J ap­pli­ca­ble to other states con­tain “spe­cial pro­vi­sion”, but 370 does not have any such cat­e­gori­sa­tion. 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, nor any par­al­lel rights. As from 26.01.1950, the en­tire com­plex­ion changed and the con­cept of state na­tion­al­ity came to an end, as such the ear­lier no­ti­fi­ca­tions have be­come otiose.

Ex­am­in­ing from an­other an­gle, Ar­ti­cle 35A stands su­per­seded by Ar­ti­cle 6 of the J&K Con­sti­tu­tion, 1957, which recog­nises cit­i­zen­ship of In­dia con­clu­sively. I am rather sur­prised why IPC, CrPC and CPC have not been made ap­pli­ca­ble so far in J&K. One of the areas of con­flict is re­ten­tion of com­mu­nity bas­tions for what­ever rea­sons, but that ap­proach is against the spirit of the Con­sti­tu­tion. The coun­try can­not per­mit any for­ti­fi­ca­tion on com­mu­nity lines as that will en­dan­ger the unity and in­tegrity of In­dia. K.C. Mit­tal is a for­mer Chair­man of the Bar Coun­cil of Delhi and for­mer Pres­i­dent of the High Court Bar As­so­ci­a­tion. The Congress vice pres­i­dent, Rahul Gandhi, has many more miles to walk so as to re­deem him­self in the eyes of the In­dian peo­ple. He is per­ceived to be a re­luc­tant politi­cian, who has been un­able to come to terms with the ground re­al­i­ties as they ex­ist in this coun­try. How­ever, like his speech at the AICC ses­sion on 17 Jan­uary 2014, his per­for­mance at the Berke­ley Univer­sity cam­pus did pro­vide glimpses of his po­lit­i­cal evo­lu­tion. It is an­other mat­ter whether he would con­tinue to speak as co­her­ently and more im­por­tantly, act in a sim­i­lar vein in the fu­ture as well.

Rahul’s Berke­ley ad­dress was an at­tempt by him to set the record straight that he was not as dim-wit­ted and po­lit­i­cally naive as he is peren­ni­ally pro­jected on so­cial me­dia. In fact, he made it am­ply clear that his im­age di­min­ish­ment was the hand­i­work of thou­sands of Sangh ac­tivists, who at the in­stance of Prime Min­is­ter Naren­dra Modi were ac­tively en­gaged in por­tray­ing him as an in­ca­pable leader with­out a mind of his own. In other words, the bot­tom line be­ing that he was a vic­tim of false pro­pa­ganda un­leashed against him to en­sure that he was dam­aged be­yond re­pair.

How­ever, what he did not re­fer to is also equally true—that many se­nior lead­ers within his own party, par­tic­u­larly some close to So­nia Gandhi, had ini­ti­ated, dur­ing the early part of the UPA-2 regime, a silent cam­paign to ma­lign him. They ev­i­dently were in­tim­i­dated by his im­mi­nent rise, which would have marginalised them and thus wanted to por­tray him in a poor light. For the ex­e­cu­tion of this ex­er­cise, the me­dia was utilised. The BJP took over the anti-Rahul game much later and con­tin­ues to play it con­sis­tently in or­der to en­sure that there is no way that he emerges on the po­lit­i­cal ter­rain.

Rahul’s Berke­ley speech was sig­nif­i­cant since he praised the Prime Min­is­ter for his abil­ity to be an out­stand­ing com­mu­ni­ca­tor, who in the same breath could send var­ied mes­sages to var­i­ous sorts of peo­ple in a sin­gle au­di­ence. In­deed, Modi ex­cels in con­nect­ing to the masses and has the gift of seam­lessly sell­ing dreams. How­ever, the Congress vice pres­i­dent noted that the Prime Min­is­ter was con­tin­u­ing to carry on with some of the schemes ini­ti­ated by the UPA and de­signed for a des­ig­nated pe­riod. They, there­fore, had be­come out­dated, re­sult­ing in the fact that he too was given to sec­ond thoughts, though the present govern­ment was con­tin­u­ing to push through the Congress ar­chi­tec­ture with­out recog­nis­ing the in­her­ent flaws.

The most salient fea­ture of his speech was that he had the courage to ad­mit that ar­ro­gance con­trib­uted to the rout of his party in the last Par­lia­men­tary elec­tions. Ac­cord­ing to Rahul, ar­ro­gance had crept in the govern­ment by 2012 and this be­came a ma­jor fac­tor in alien­at­ing the masses. While crit­i­cis­ing Rahul, In­for­ma­tion and Broad­cast­ing Min­is­ter Sm­riti Irani re­marked that he had de­scribed the govern­ment sup­ported by his mother as “ar­ro­gant”. On the con­trary, for any leader to con­cede any neg­a­tive fac­tor is in it­self a qual­ity which is vir­tu­ally un­heard of. It was a mo­ment of un­matched hu­mil­ity, some­thing from which other politi­cians too can take a leaf, thus ac­knowl­edg­ing and ac­cept­ing their fail­ures if things do not head in ac­cor­dance with plans.

Rahul was also hauled up for re­fer­ring to the dy­nas­tic re­al­ity that ex­ists not only in In­dia but the en­tire sub­con­ti­nent. It is an­other is­sue that even in the United States, the dy­nas­tic brand of pol­i­tics was wit­nessed when Ge­orge Bush ju­nior fol­lowed in his fa­ther Ge­orge Bush se­nior’s foot­steps to be­come the 43rd Pres­i­dent of Amer­ica.

So far as In­dia is con­cerned, dy­nasty is not con­fined to the Nehru-Gandhi fam­ily alone. Within the BJP, the Scin­dias are the prime ex­am­ple, though there are other in­stances such as Kalyan Singh and son Ra­jbeer Singh, Ra­j­nath Singh and Pankaj Singh, Gopinath Munde and Pankaja Munde, Pramod Ma­ha­jan and Poonam Ma­ha­jan, Prem Ku­mar Dhu­mal and Anurag Thakur, Yash­want Sinha and Jayant Sinha and B.S. Yed­dyu­rappa and B.Y. Raghaven­dra. Then, there are the Ab­dul­lahs and the Muftis in Kash­mir, the Badals in Pun­jab, the Karunanid­his in Tamil Nadu, the Pawars in Ma­ha­rash­tra, the Ya­davs in both Bi­har and Ut­tar Pradesh, and so on... This is a fact and be­yond pol­i­tics as well, it is re­flected in var­i­ous other spheres such as the film in­dus­try, business houses, the med­i­cal and le­gal pro­fes­sions etc.

Be­ing merely a dy­nast is not a one way ticket to strato­spheric heights. As the say­ing goes, one has to work like a slave to live like a king. Indira Gandhi was able to out­shine her fa­ther be­cause she caught the imag­i­na­tion of the peo­ple. Be­ing Nehru’s daugh­ter may have ini­tially helped her, but her stature was self-ac­quired through her own brand of per­se­ver­ing pol­i­tics.

Rahul’s free-wheel­ing in­ter­ac­tion per­haps would have gone un­no­ticed, had it not been for the BJP’s strong con­dem­na­tion of it. If he is a non-en­tity and a “Pappu”, as painted by his de­trac­tors, the head-scratch­ing ques­tion is: why did his visit to Berke­ley spark such vit­ri­olic re­tal­ia­tory re­sponses? For some rea­sons, In­dian lead­ers tend to shed their in­hi­bi­tions and say their piece when over­seas; this is so from Modi to Rahul. There­fore, his speech should be seen as his en­deav­our to set per­cep­tion is­sues straight. The fi­nal ver­dict on him, like ev­ery­one else, would be pro­nounced by the peo­ple of In­dia. Be­tween us.

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