RIGHTS IN LIMBO

The Cen­tre’s push to re­scind Ar­ti­cles 370 and 35A has lent the political un­cer­tainty in J&K a new edge

India Today - - STATES -

In a press con­fer­ence in Srinagar on June 12, Jammu & Kash­mir gover­nor Satya Pal Ma­lik at­tempted to take the edge off rising ap­pre­hen­sions in the Val­ley that the new gov­ern­ment at the Cen­tre was com­mit­ted to the idea of ab­ro­gat­ing Ar­ti­cles 370 and 35A, which guar­an­tee spe­cial laws and safe­guards for the state. Ma­lik said this was not a new idea, and yet main­tained that there was “noth­ing to worry about”. He even cited, in an ear­lier interview in Oc­to­ber last year, sim­i­lar pro­vi­sions in states like Hi­machal Pradesh and the North­east. In that interview, Ma­lik went so far as to hold out a “guar­an­tee”, premised on his “faith in the In­dian ju­di­ciary”, per­haps re­fer­ring to the pe­ti­tions in the Supreme Court chal­leng­ing the con­sti­tu­tional va­lid­ity of 35A.

De­spite the gover­nor’s as­sur­ances, fears of an im­mi­nent ab­ro­ga­tion of the con­sti­tu­tional safe­guards are pal­pa­ble in the state. BJP chief Amit Shah’s induction as In­dia’s home min­is­ter, and spec­u­la­tion about the home min­istry’s in­ten­tion to con­sti­tute a de­lim­i­ta­tion com­mis­sion for the state to re­align con­stituen­cies (os­ten­si­bly to give the BJP-back­ing Jammu re­gion a nu­mer­i­cal ad­van­tage in the J&K assembly) have only added to the fears. This could also put the BJP in pole po­si­tion to fi­nally push through its long-trum­peted goal to end J&K’s spe­cial sta­tus. That said, it has been ar­gued that by go­ing af­ter Ar­ti­cles 370 and 35A, Prime Min­is­ter Naren­dra Modi and Shah could ex­pose the cen­tral gov­ern­ment to a flood of lit­i­ga­tion, cit­ing, in Ma­lik’s words, ‘sim­i­lar pro­vi­sions’ in other states.

It’s true that J&K isn’t the only state for which spe­cial laws and safe­guards have been included in the Con­sti­tu­tion. There are 11 states, not in­clud­ing Hi­machal, that are protected under Ar­ti­cles 371 and 371A to 371J. The states in­clude Ma­ha­rash­tra, Gu­jarat, Goa, As­sam, Arunachal Pradesh, Na­ga­land, Mi­zo­ram, Ma­nipur, Andhra Pradesh, Te­lan­gana and Kar­nataka. But these are es­sen­tially con­sti­tu­tional pro­vi­sions that pro­tect tribal/ eth­nic land, property, cul­ture, lan­guages, so­cial prac­tices and cus­tom­ary law.

The Hi­machal Pradesh Ten­ancy & Land Re­forms Act 1972 (specif­i­cally, Sec­tion 118), which is most com­monly, al­beit er­ro­neously (as by Gover­nor Ma­lik back in Oc­to­ber 2018),

held up as a par­al­lel to Ar­ti­cle 35A, is in fact a state leg­is­la­tion that re­stricts trans­fer of [agri­cul­tural] land in favour of a per­son who is not a na­tive of the state. As pointed out time and again, the­o­ret­i­cally, it is pos­si­ble for a non-Hi­machali to buy land, in­clud­ing farm­land, af­ter seeking per­mis­sion from the state gov­ern­ment. Also, there is no bar on out­siders buy­ing flats, built-up homes and com­mer­cial premises. Hi­machal also has a domi­cile law man­dat­ing a min­i­mum 20-year res­i­dency to qual­ify for ad­mis­sion to state-run in­sti­tu­tions and gov­ern­ment jobs.

Sikkim is re­ally the only other state where laws pre­dat­ing its ac­ces­sion to In­dia in 1975 con­tinue to ex­ist. Ar­ti­cle 371F(k) man­dates that all laws in force be­fore Sikkim be­came a part of the In­dian Union shall con­tinue un­less re­scinded or amended by the state assembly. This in­cludes the Ma­haraja Reg­u­la­tion of Oc­to­ber 1962, which bars the sale or trans­fer of property to out­siders. The con­sti­tu­tional pro­vi­sion was os­ten­si­bly included to pro­tect the rights of the largely tribal pop­u­la­tion of Sikkim at the time of its ac­ces­sion.

Both Ar­ti­cles 370 and 371 were part of the orig­i­nal draft of the Con­sti­tu­tion that came into force on Jan­uary 26, 1950. The other state-spe­cific pro­vi­sions were included through amend­ments under Ar­ti­cle 368, which em­pow­ers Par­lia­ment and lays out the pro­ce­dure for con­sti­tu­tional amend­ments. Ar­ti­cle 35A, how­ever, was included via a pres­i­den­tial order in 1954, to em­power the J&K leg­is­la­ture to de­fine per­ma­nent res­i­dents and ex­tend them the right to ac­quire property, vote in elections and seek gov­ern­ment em­ploy­ment. That the pro­vi­sion did not have par­lia­men­tary ap­proval is what has been chal­lenged in the Supreme Court. K.B. Jan­dial, a for­mer civil ser­vant who did a stint with the J&K Pub­lic Ser­vice Com­mis­sion, in­sists “the pres­i­dent is not em­pow­ered to add a new ar­ti­cle, as is the case with Ar­ti­cle 35A”. Speak­ing at a pub­lic fo­rum in Jammu, Jan­dial even de­scribed it as “a sin­is­ter in­ser­tion in the Con­sti­tu­tion”.

So the es­sen­tial ques­tion be­fore the court is whether the pres­i­dent has the power to in­tro­duce a new ar­ti­cle in the Con­sti­tu­tion by­pass­ing Par­lia­ment. Ar­ti­cle 370(1)(d) ap­pears to grant the pres­i­dent such power, al­beit in con­cur­rence with the J&K gov­ern­ment, but the jury is still out on that.

J&K isn’t the only state with spe­cial laws and safe­guards. There are 11 states protected under Ar­ti­cles 371, 371A to 371J, in­clud­ing Ma­ha­rash­tra, Gu­jarat, Goa, As­sam, Arunachal Pradesh, Na­ga­land, Mi­zo­ram, Ma­nipur, Andhra Pradesh, Te­lan­gana and Kar­nataka. But these are mostly con­sti­tu­tional pro­vi­sions that pro­tect tribal/ eth­nic land, property, cul­ture, lan­guages, so­cial prac­tices and cus­tom­ary law

ABID BHAT

VAL­LEY ERUPTS A protest in Srinagar against at­tempts to re­voke Ar­ti­cle 35A

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