35A does not give parallel rights to Kashmir
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.