In the process of effectively scrapping Article 370 of the Constitution through a Presidential order supported by a resolution in Parliament, the Bharatiya Janata Party (BJP) and its supporters regurgitated a slew of myths, half-truths and sleights of hand that have been part of the Rashtriya Swayamsevak Sangh (RSS) propaganda for decades. The fact that many parties who do not subscribe to the RSS ideology also repeated them only goes to show how far these myths have travelled. Meanwhile, social media went ballistic with RSS/BJP supporters posting more and more bizarre claims while others started offering land for sale in Kashmir.

Here are some of the most long-nurtured myths – and the reality behind them.

MYTH: “J&K integration with India took place in October 1947. Article 370 came into force in 1952, Article 35A came in 1954, four and seven years later respectively. How can Articles 370 and 35A be a condition precedent to merger?”

This statement by Arun Jaitley, conveyed through a tweet on August 4 , summarises a frequently given argument. It is meant to prove that Article 370 and Article 35A were somehow unrelated to J&K’s joining of the Indian Union implying thereby that they are unnecessary and also that they were the result of some Congress government’s stupidity. Actually, this statement is wholly erroneous.

REALITY: The Instrument of Accession (IOA) was signed by Raja Hari Singh, then ruler of J&K on October 26, 1947. The IOA itself said that Parliament could only legislate on defence, external affairs, communications and some ancillary subjects in respect of J&K. Clause 5 clearly says that “The terms of this my Instrument of Accession cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. Clause 7 said: “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution.”

In other words, there were many things left pending in the IOA and these were to be settled through negotiation in the coming years. Remember that in 1947, Pakistani forces and tribal militias had invaded Kashmir and were on the verge of annexing the whole of the state. In fact, this is what forced Raja Hari Singh to turn to India – otherwise he was vacillating. India rushed troops to Srinagar and the war went on till 1949. After that, negotiations on how to lay out the laws and governance mechanism started. Meanwhile, in order to preserve the spirit of IOA and reassure the Kashmiri ruler, Article 370 was moved in India’s Constituent Assembly in May 1949 and passed in October 1949 to become part of the Indian Constitution. In 1950, 1952 and 1954 Presidential Orders to settle various issues were passed. Both Nehru and Patel were part of these negotiations, blowing away the other myth that Patel was opposed to Article 370. The RSS was, at that time, propping up an agitation against the land reforms initiated by the Sheikh Abdullah government (appointed by the Raja), cloaking it as a demand for full integration of J&K. Most land was vested with Dogra and Pandit landlords, so the RSS was simultaneously giving it a communal colour, since most peasants tilling the land were Muslims. Perhaps that’s why they do not choose to remember the complex history of that period.

What about Article 35A? RSS/BJP propaganda hides the fact that way back in 1927, Raja Hari Singh had passed a Hereditary State Subject Order which allowed only to residents of the state to own land and right to government office. Subsequently, this was included in the J&K Constitution by the state’s Constituent Assembly. Because the IOA insisted that only those subjects in the Indian Constitution that were permitted would extend to J&K, the rights of state subjects also had to be preserved. This was done by the Presidential Order of 1954 which inserted Article 35A.

MYTH: “Autonomy given under Article 370 caused alienation of Kashmiri people from India.”

REALITY: Home Minister Amit Shah asserted that Article 370 was the root cause of spread of terrorism while many RSS/BJP leaders have been saying this for years. As a corollary, it is also said that the article was the source of sentimental belief in a separate Kashmir, providing ground to cross-border terrorists to exploit.

The harsh reality is that it is the erosion of Article 370, in letter and spirit, that has led to increasing disenchantment of Kashmiri people and their search for a way out. First, look at the erosion in letter. Since Article 370 provided for extending provisions of law to J&K through Presidential Orders, issued after concurrence of the State Assembly, this method has been used extensively. By the 1954 Order, almost the entire Constitution was extended to J&K. Out of the 97 entries in the Union List, 94 have been made applicable to the state and out of the 47 entries in the Concurrent List, 26 have been extended to the state. This has largely reduced the powers of the J&K state government. In all, Article 370’s provisions were used at least 45 times to extend provisions of the Constitution to J&K.

In this way, not only have the rights of the state been increasingly restricted, the spirit of the section has been violated by simply getting the state government to rubber stamp such extensions. Not that there should be no extensions at all. But so many? And that too by routine approval.

Not only this, the state’s own Constitution was amended several times using Article 370. For instance, Article 356 was extended removing a similar provision in the J&K Constitution (Article 92) which called for President’s concurrence for imposing President’s rule. Extension of President’s rule were done using Article 370. Even Article 249 (power of Parliament to make laws on State List entries) was extended to J&K without an Assembly resolution but through a recommendation of the Governor.

Many of these measures were used in the past (by Congress governments) to manipulate the politics of the state – to install ministries or impose President’s Rule. The BJP government itself played the same game in the previous term. And, now they have upturned the whole thing lock, stock and barrel.

MYTH: “Development was not possible because Article 370 didn’t allow it.”

REALITY: This is one of the most ludicrous of all myths created by the present government. Referring to the effective scrapping of Article 370, Arun Jaitley tweeted: “”The decision of the government will help the people of J&K the most. More investment, more industry, more private educational institutions, more jobs and more revenue.” Many of the MPs who spoke in the Rajya Sabha and Lok Sabha waxed eloquent on the so-called benefits that would accrue with the removal of special status, including J&K will now become part of Global India”, etc.

How did Article 370 stop any government from providing or encouraging more investment and industry in the state? Already most provisions of the Constitution, including Union list entries were extended to the state. Most laws were also extended. The Union governments of the day could have undertaken any economic measures or schemes/programmes they wanted in J&K. In fact, all these years, there were wild promises of special packages, including the one made by PM Modi himself in 2015 for Rs 80,000 crore (of which about Rs.66,000 crore only actually materialised, till 2019).

The truth is that no government at the Centre – whether Congress or BJP/NDA – seriously undertook a complete package which included both economic and political measures that would provide sustainable and long-term benefits to J&K. The attitude was always that of distributing largesse and that too in a very myopic manner. Later, as the militancy took roots, all pretence of economic uplift was abandoned except when elections were in the offing.

What Jaitley and others really mean is that by removal of Article 35A, land will now become available and so, real estate sharks can gobble it up and deploy it for setting up private businesses including “private schools” as Jaitley innocently specifies. Whether this will happen or not is for the future to reveal. It is difficult to believe that private investment will flow into J&K even as the people there are discontented and uncertain.

MYTH: “Art 370 and Art 35A, and the arrangement they enshrine, were unique to J&K.”

REALITY: This is a popular myth but wholly untrue. Immediately after Article 370 in the Constitution is Article 371 in which various sub-articles exist giving similar special status to various regions/states based on the ethnic histories and cultures of the areas. These include: 371A for Nagaland; 371B for Assam; 371C for Manipur; 371D and E for Andhra Pradesh; 371F for Sikkim; 371G for Mizoram; 371H for Arunachal Pradesh; and 371I for Goa. Among the main provisions (except for Goa and Andhra Pradesh) are included provisions for land ownership, Governor’s role, etc. In other states too, there are laws preventing non-domiciliary persons from owning land like Himachal Pradesh (under its own HP Tenancy and Land Reforms Act, 1972). So, it is not as if J&K had something unique. It is notable that most states having such special laws that preserve local customs and culture or prevent land alienation have a special history and demographic composition (for example, tribal population) which calls for sensitive handling and assurances about rights. The same was the case with J&K.

Courtesy: News Click

The post Some Myths About Article 370, 35A and Kashmir appeared first on SabrangIndia.

Article 35A surreptitiously inserted by Pt. Nehru’s govt. in the Constitution in 1954 vide Presidential order is responsible for discrimination by the J&K govt. between two categories of citizens on the basis of declaring some as permanent residents while leaving out the others.”
Before I join the issue on  legality or otherwse of Article 35A, let us try to read & analyze the motive behind Jaitley’s blog &  tweet:
 

1. He has blamed Nehru Govt. for introduction of Article 35A in the Indian constitution .This is because of  his electoral compulsion as BJP is desperately in need of votes in the ensuing elections and ridiculing Nehru fetches them votes.
2. Since the issue is likely to be heard anytime now by the supreme court, it is also aimed to influence the opinion of Hon’ble judges and to convey the court what the Govt. of the day expects from it.
3. Removal of article will throw the various privileges enjoyed by state subjects to challenge in Indian courts which may ultimately open a road for Indians to acquire land & other immovable properties in J&K, thus ultimatelychanging its demographic character.

At the outset it must be stated that Article 35A doesn’t grant or confer any new or fresh rights  on the people of Kashmir .The article  only  restricts the Indian public to challenge their existing rights to immovable property & employment  within the state etc. These rights were conferred on them  in 1927 when Mahraja of Kashmir, in his wisdom, passed a law and granted  his subjects i.e the people of Kashmir these rights.  It needs to be appreciated that contemporary India was not even in existence then.
Be that as it may, let us flag the issues raised by Mr. Jaitley:
 

1. That Article 35A was surreptitiously inserted in Constitution of India-By which he means that the said article was passed through a presidential order instead via  the Procedure prescribed in article 368 to amend or alter constitution of India.In his opinion, the parliament didn’t have an opportunity to discuss the article in great detail and Nehru Govt.
2. That it is discriminatory

Let us take his allegations one by one.
As far as his contention that it was surreptitiously inserted without discussing it in Indian Parliament is concerned, Nehru’s following statement to Lok Sabha in 1954, pursuant to an animated discussion on the issue,  nails his lie;

“The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time past, in the Maharaja’s time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there. And that continues. And in the state subjects notification by the Maharaja, they defined four grades of subjects, Class number one, Class two, Class three and Class four. And unless you come in one of these classes, you just cannot acquire land there, or any immovable property. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sale qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Now they want to vary the old Maharaja’s laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. So far as we are concerned, I agree that under Article 19, clause (5), of our Constitution, we think it is clearly permissible both in regard to the existing law and any subsequent legislation”

Space doesn’t permit me to reproduce here three other statements/clarifications by Mr. Nehru to both houses of Parliament after sharp & probing  questions were raised on the issue by both treasury  & opposition benches. Mr. Jaitley will do well to dig into records of parliamentary proceedings to acquaint himself with the correct position. Suffice it to say here that this  article was discussed threadbare in both houses of Paliament and there is no substance in his allegation that it was introduced surreptitiously.

A question arises here as to what prevented Nehru to insert  the above article in constitution  through  the  procedure prescribed under article 368 instead of  a presidential  order 1954, which has now became a  bone of contention. The reply to this is provided in the then Attorney General M.C.Setalvad’s opinion, an eminent jurist, to whom the proposal was sent in the normal  course for his comments . His robust opinion & sound advice  was that since article 370 was already existing  in the constitution, it was neither possible nor desirable to insert article 35A via the procedure prescribed under article 368 but only through a presidential order as prescribed under article 370. Unfortunately the important file containing this opinion is now reported   missing from the safe vaults of Union home /LawMinistry- a phenomenon which occurs at regular intervals with this Govt.

Coming to the discrimination to women & non-state subjects  issue raised by Mr. Jaitley, Let it be made clear that as far as women are concerned, Article 35A is gender neutral & it doesn’t discriminate between men & women. It has also been made clear that a married state subject women doesn’t loose her status & property rights upon marrying a non state subject by virtue of J&K High Court  full bench decision  in  State of Jammu and Kashmir vs Dr Sushila Sawhney, which has attained a position of law in absence of any challenge.

As regards other sections of non state subjects like West Pakistani refugees, safai Karamcharis (Valmikis)  desirous to obtain state subject status , it is sufficient to quote here the relevant portion of the judgment of Supreme court in  Bachan Lal Kalgotra v. State of Jammu and Kashmir[ AIR 1987 SC 1169.]. The chief contention in the said case was that the refugees from West Pakistan who had migrated into the State of Jammu and Kashmir in 1947 are not permanent residents as defined in s.6 of the Jammu and Kashmir Constitution, with the result that they were disentitled to be included in the electoral rolls of the State Assembly or  to be appointed to any service under the State Government by direct recruitment or to purchase land in the State etc. etc. The petitioner had sought the conferment of all such benefits under Article 35A read with section 6 of the Constitution of Jammu Kashmir thereof as are allowed  to the permanent residents of the State . While dismissing the petition after dwelling at length on Article 35A , the Apex Court  held that in view of the peculiar Constitutional position obtaining in the State of Jammu and Kashmir, we do not see what possible relief we can give to the petitioner. All that we can say is that it is up to the Legislature of the State of Jammu Kashmir to take action to amend various laws to accommodate the interests of West Pakistan refugees.

From the above it is clear that Mr. Jaitley’s  grounds of attack on article 35A are fallacious and erroneous made only  to mislead gullible Indian public  with a twin purpose of reaping electoral dividends & furthering the Hindutva agenda on Kashmir.

(The author is a practicing chartered Accountant. E mail: abdulmajidzargar@gmail.com)

Courtesy: https://countercurrents.org/
 

The post Article 35 A: A Rejoinder To Arun Jaitley appeared first on SabrangIndia.

Article 35A as well as Article 370 were inserted into the Constitution in line with the Instrument of Accession.

 

The post Striking Down Article 35A Will Open a Pandora’s Box appeared first on SabrangIndia.

Sanjay Tickoo, president of the Kashmiri Pandit Sangarash Samiti (KPSS), a partner of CJP, has issued a statement regarding an apparent news report “telecasted by National Media about the so called threat to the Kashmiri Pandits living in Kashmir Valley”. Per Tickoo, the news item was “aimed to increase the trust deficit among the population living in the Valley”.

Tickoo noted that, currently, the “State of Jammu and Kashmir is facing political instability”. His statement emphasised KPSS’ belief that “the religious minuscule minority (Kashmiri Pandit) who so ever is living in Kashmir Valley is living of his own and the kind of relationship maintained within their respective neighborhood. It seems that the news item about life threat to the religious minuscule minority (Kashmiri Pandit) in Kashmir Valley is a hoax pre-planned conspiracy and is aimed to sacrifice the Kashmiri Pandits in Kashmir Valley to gain some vested interest political mileage and to distract people’s attention from the issues related to Article 35-A and Article 370.”

He added, “It also seems that by sacrificing the religious minuscule minority (Kashmiri Pandit) in Kashmir Valley, the vested interest agencies who are planning to do this heinous crime, want to justify the removal of Constitutional Articles, which give special status to the State of Jammu and Kashmir, before the world bodies.”

According to Tickoo’s statement, after the news item was aired, some unscrupulous elements from “the local Majority Community are creating communal tension,” and are harassing the local Kashmiri Pandit population. Tickoo alleged that “these elements” were “openly telling the people” that if Kashmir Pandits had not “continued to live in the valley, the Security Forces would not…come during the night hours to disturb the Majority Community living in the area.” Tickoo noted that the onus lies on “the local Majority Community” who he said “are unable to stop” those “with vested interests who want to permanently damage and dislodge the Kashmir Pandits living in the Valley.”

Tickoo stressed in his statement that the Kashmir Pandit minority has “full faith in the masses and more particularly on their respective neighborhood, who always stand at the hour of need and will not allow past mistakes to happen again which can permanently damage the social fabric of Kashmir Valley. We believe in unity against those trying to destroy our existence in Kashmir Valley.” He called on Kashmir Pandits in the Valley to be cautious, and inform their neighbourhoods about any security issue.

Tickoo’s complete statement may be read here:

Press Release
 
Subject: Life of Pandits of living in Kashmir Valley is put on risk to divert the attention from Article – 35 A and Article 370.
 
Right now State of Jammu and Kashmir is facing political instability and amid this political chaos the news item telecasted by National Media about the so called threat to the Kashmiri Pandits living in Kashmir Valley is aimed to increase the trust deficit among the population living in the Valley.
 
KPSS strongly believe that the religious minuscule minority (Kashmiri Pandit) who so ever is living in Kashmir Valley is living of his own and the kind of relationship maintained within their respective neighborhood. It seems that the news item about life threat to the religious minuscule minority (Kashmiri Pandit) in Kashmir Valley is a hoax pre-planned conspiracy and is aimed to sacrifice the Kashmiri Pandits in Kashmir Valley to gain some vested interest political mileage and to distract people’s attention from the issues related to Article 35-A and Article 370. It also seems that by sacrificing the religious minuscule minority (Kashmiri Pandit) in Kashmir Valley, the vested interest agencies who are planning to do this heinous crime, want to justify the removal of Constitutional Articles, which give special status to the State of Jammu and Kashmir, before the world bodies.
 
Since the news items was flashed in the National Media, at some places in Kashmir Vallley, some un-scuplous elements who belongs to the local Majority Community are creating communal tension and are causing harrasment and threat to the local Kashmiri Pandit population while these elements openly telling the people that if these Kashmiri Pandits would not had continued to live in the Valley, the Security Forces would not had come during the night hours to disturb the Majority Community living in the area. Now, the onus also lie on the local Majority Community who always claim tall to say that the Kashmiri Pandits should return to their native places but on the contrary are unable to stop these un-scruplous elements with vested interests who want to permanantly damage and dislodge the Kashmiri Pandits living in the Valley.
 
The religious miniscule minority (Kashmiri Pandits) have full faith in the masses and more particularly on their respective neighborhood, who always stand at the hour of need and will not allow past mistakes to happen again which can permanently damage the social fabric of Kashmir Valley. We believe in unity against those trying to destroy our existence in Kashmir Valley.
 
It is impressed upon all the Kashmiri Pandit residents living in Kashmir Valley to remain cautious and if they see or feel anything untoward in their respect areas of residence, they should beat their roof tops to inform their immediate neighborhood about the security issue. Also we request the majority Community to attend the call of distress after hearing the noise created by beating of roof tops by their immediate Kashmiri Pandit neighbor.
 
 
Sanjay K .Tickoo
President (KPSS)
9906564741

The post Report of threat to Kashmiri Pandits to distract from issues about Article 35A, 370: KPSS appeared first on SabrangIndia.

Here are the experts
Could you tell us a little about yourself?
I am a proud citizen of my state, Jammu and Kashmir; I was born in the downtown area of Srinagar City in a Hindu family. I was the chairman of J&K trade union centre, I am also the state president of Hind Mazdoor Sabha, and I am also the state president of retired gazetted/non-gazetted employees. I was heading many trade unions from time to time. I was arrested many times by different governments in the state related to my strikes and agitation regarding the matters related to the demands of employees. I have spent almost 8 years in different jails of the country.

Tell us about your petition regarding Article 35(A) in Supreme Court which you have filed decades ago.

In 1968, I along with 17 of my colleagues were arrested and booked under Preventive and Detention act section (13A) of Indian Parliament for launching a mass agitation against the government for low wages. Since this act was not applicable to the citizens of Jammu and Kashmir, I filed a petition in the Supreme Court challenging my detention under this act. My case is known as the Sampat Prakash V/S the state of Jammu Kashmir. In its Judgment, a five-member bench of the Supreme Court clearly ordered and I quote, “the word ‘modification’ as used in article 370(1) in the context of constitution includes as amendments as well. These are no reason to limit the word in Art 370 (1) only to such modification as do not make any radical transformation….”- the same kind of judgment came before that in Puran Lai Lakhanpal V/S President of India…a case where a five-member bench of Supreme Court ordered and I quote. “Word modification as used in Art 370(1) in the context of the constitution… we are therefore of the opinion that this word must be given widest effect to the meaning of the word modification word in Art 370(1) and in that sense, it includes the power to amend the constitution.

The five judges gave the judgement that the detained is not a convict and I, along with hundreds of Kashmir detainees who were booked under this act was released. So we were saved by Article 35(A). The point is Supreme Court has already dismissed a petition filed for the abrogation of Article 35-A decades back after it was challenged by me, so why this hue and cry this time?

Why do you want to defend Article 35(A)?
Because I want to preserve my identity, I want to save my culture, my heritage and my economy. As a member of Pandit community, a trade union leader and as part of Kashmiri society I want my Kashmiri pride and dignity to be restored, safeguarded and secured from all foreign intervention and nefarious designs. I have always taken pride in being a Kashmiri and thought for the rights of fellow Kashmiris. My struggle as a trade union leader is well known to all.

How will changes in the status of Article 35(A) impact the economy and the culture of the state?
First, we will lose state subject, which means anyone from outside state can get a job in my state. So I will have a lesser chance of getting the job in my own state. Besides that, the Tatas, Ambanis and Birlas of India will buy land here and they will establish their own industries and factories. They will modernise everything, as a result, we will lose our culture which was given to us by our ancestors. There will be no handicrafts, no paper mache and arts and emporiums will vanish. In short, the ways of our earning which was handed over to us by our ancestors will be over. They will modernise the Mughal gardens, we will lose our identity. As we know this article debars Indians from outside J&K from purchasing land and getting state government jobs in the state.

Tell us about this law since you have followed it closely. What is its history? 
I must tell you this is not a new law; this law is an old law as old as the formation of Jammu & Kashmir state itself. History tells us that this law was initiated by Walter Lawrence in 1884 when Kashmir became a part of British Empire and was sold to Dogras for 75 lakh Nanak Shahi. As a Kashmiri Pandit, for me this law is actually an outcome of the struggle of my ancestors like Jia Lal Kalim, Professor Jia Lal Koul, Shanker Lal Koul, Jia Lal Jalali and others who in 1880, when Partab Singh was ruling this land, started agitation for securing the rights of state subjects of Jammu & Kashmir. Even renowned representatives of Dogra Samaj like Om Prakash Saraf supported the said struggle and persuaded Maharaja to implement the law. For me 35A is not new and I am not fighting for its safeguard because it is in the Indian constitution, but for me it is a protection to my state subject law promulgated by Dogra Ruler Hari Singh in 1927 following a strong campaign by Kashmiri Pandit Community who was opposing the hiring of civil servants from Punjab.

For me, like my fellow Muslim Kashmiris and Dogra brothers, state subject law is a matter of life and death and fighting for it as sacred as anything. It is a matter of utmost shock and surprise that Indian Supreme Court has accepted to admit this new plea on 35 A. I am shocked because in past not once but twice, not any ordinary bench but a full constitution bench of 5 respected judges of the Supreme Court have already rejected or held these pleas invalid in the Past. Therefore, in my view, this matter in the first place should not have been admitted for a hearing and should have been rejected.

What is the stand of Kashmiri Pandits on this issue?
They are silent and silence amounts to death, but I must tell them they should join their Muslim brethren to save their culture, identity. Of course, there are some are very concerned about the issue. They will lose of getting jobs on the special package if they lose state subject.

Despite being a Kashmiri Pandit, you also led the protest against the establishment of Sainik and separate Pandit colonies in Kashmir. Why?
Because the creation of separate colonies was a challenge to Kashmiriyat and the majority of the Pandit population didn’t accept this government proposal which was dividing the Kashmir society. The Muslims and Pandits have always lived like brothers, shared happiness and sorrows with one another. There are love and affection between these two communities but under a well-planned conspiracy Government of India with the help of some zealot Pandits want to create a wedge between Pandits and Muslims. So I was and will be against moves that attempt to divide the Kashmiri society.

What will be your message for your fellow Kashmir Pandits?

I have a humble appeal to every citizen of whole Jammu Kashmir including Kashmiri Pandits to stand up and rise above the considerations of your cast, colour, religion, language and even political beliefs. Unite and fight together to safeguard your special Status. Your uniqueness and your land state subject law is not important only to majority Community i.e. Muslims of Jammu and Kashmir… it safeguards us all. So let us all join hands to secure this law for our coming generations. As a Kashmiri patriot, it is my responsibility to raise my voice against this growing threat to our national life.

Courtesy: Two Circles

The post Kashmiri Pandits must join the fight against tinkering with Article 35 (A): Sampat Prakash, Kashmir trade union leader appeared first on SabrangIndia.

The Supreme Court of India is going to hear a petition challenging Article 35A of the Constitution, which gives special rights and privileges to residents of Jammu and Kashmir.

Former Chief Ministers Mehbooba Mufti and Farooq Abdullah; separatists Syed Ali Shah Geelani and Mirwaiz Umar Farooq have warned of unrest in Kashmir if any tampering was done with the Constitutional provision, while Kashmir-based trade organisations have also supported the call for agitation.

PDP president Mehbooba Mufti said in a rally in Srinagar recently that she has already conveyed to Prime Minister Narendra Modi that the safeguarding of the special constitutional position of Jammu and Kashmir forms part of the ‘agenda of alliance’.“Any tinkering with it would turn the state into a veritable inferno,” Mufti said. She called for a united front of all political parties in the state to protect the law. National Conference president Farooq Abdullah, too, warned that his party won’t allow the Centre to fiddle with the political status and “honour” of the people of Jammu and Kashmir.

Syed Ali Geelani, Mirwaiz Umar Farooq and Yasin Malik under the banner of Joint Resistance Leadership (JRL) met at Geelani’s residence on Sunday and deliberated on the “serious challenge” posed to Article 35A in the Supreme Court.

The leaders said that the plan meant “Kashmiris will become a minority in their own land” and “will be pushed to the margins”.

The separatist leaders have called for strikes on August 5 and 6 in the state and warned of launching a “mass agitation of hitting and occupying streets”.

On Monday the representatives of more than 27 organizations held a press conference where they warned of an agitation, in case Article 35A is removed or altered. They have also supported the strike call given by the Joint Resistance Leadership group on August 5, 6.

The Centre’s decision not to defend the rule, which has been challenged in the Supreme Court, has wiped out the political lines and brought together all Kashmiris. The Supreme Court is expected to hear the case on August 6.

Majid said “If BJP & RSS think that this war will remain restricted to Kashmir, they are living in a fool’s paradise. It will engulf the whole of India.” According to reports, the Union government has declined to defend Jammu and Kashmir State in the apex court, putting the law seriously under threat.

Political experts believe that this is the best time for the centre to fiddle with the article as the state is currently under Governor’s rule. Some fear that removal of Article 35 might create another mass uprising like those of 2008, 2010 and 2016.

“We wish to inform the general public that if the said Article is removed or tinkered with, then the rights of original citizens of Jammu and Kashmir on their immovable property and other such rights would be taken away and all Indians would be accorded a right to establish their settlements in length and breadth of Jammu and Kashmir pushing away the original citizens. The purpose behind this PIL is devious to change the demographic character of Jammu Kashmir and alter the nature of the dispute that is internationally recognised.” said a member of the Kashmiri business community.

“The worry among the citizens of Jammu and Kashmir to resist against the attempted onslaught is very much justified.  Let us make it amply clear that the hereditary state subject law of Jammu and Kashmir shall be protected at any cost even on the lives of the citizens and no tampering with this law would ever be tolerated. The powers that be are hereby put on notice to take all necessary steps to get the nefarious PIL filed by an RSS backed NGO dismissed at the earliest in order to save themselves from its political ramifications and consequences. This matter is related to the life and death of the people of Jammu Kashmir and we all are ready to spill our blood to safeguard this law,” said Dr Mubeen Shah, former president of Kashmir Chamber of Commerce.

 Article 35A, promulgated by the President in 1954, gives powers to the Jammu and Kashmir legislature to define the permanent residents of the state and also their privileges. However, its constitutional validity has been challenged in the apex court where the case will come up for next hearing on August 6.

Business representatives appealed the Supreme Court to dismiss the petitions challenging the validity of the provision.

Speaking with Two Circle.net, trade leader Muhammad Yasin Khan said that it will have serious ramifications if Article 35A is tinkered with. He said people of Chenab Valley and Pir Panchal are supporting them and they are on the same page.

“There is apprehension that it (Article 35A) might be diluted and at the same time, there can be a strong reaction from the people. Kashmir is already alienated and the society is mobilised, it will get further alienated,” said Dr Sheikh Showkat Hussain, a well-known Kashmiri political analyst.

“Any fiddling with Article 35(A) will have serious repercussions; it will directly affect people of this place, entire demography will be changed so people have to think in those terms,” said Advocate Mian Abdul Qayoom, President Jammu and Kashmir High Court Bar Association.
Another young political commentator from South Kashmir Hafiz Abdul Bari believes that fiddling with Article 35(A) means Jammu and Kashmir is Palestine in becoming.

“It clearly means we will have lost everything in due course of time; our land, jobs resources, culture and even religion,” he says, adding, “The current political establishment in India may assume that Abrogation of Article 35 A may lead to national integration, but I believe it will certainly add to the already-present alienation among the people of Jammu and Kashmir.”

First published on Two Cirlces
 

The post Article 35A case in SC: Kashmir gears up for ‘mass agitation’ appeared first on SabrangIndia.

The groups’ statement said that “our state subject laws have been under attack” since a PIL was filed by We the Citizens, an RSS-backed NGO, and admitted by the Supreme Court of India. The PIL “challenges the validity” of Article 35A of the Indian Constitution, the groups said, noting that Article 35A “affords a protective shield to the hereditary state subject law of Jammu and Kashmir that is in existence since 1927”. They later added, “History is witness to the fact that Article 35-A was enacted in” the Indian Constitution in 1954, “and since then several petitions were filed by different groups and individuals to challenge this Act.” The statement noted that “all such admissions would get dismissed before their admission by the Supreme Court only because of the prompt and appropriate defense by successive Governments at New Delhi.” This time, however, the groups said that the Government of India has “bizarrely declined to defend their own” Constitutional provision, and has not filed any counter to the PIL. “This speaks volumes about the complicity of GOI in the attempt of removing or tinkering with the Article 35A,” they stated. According to the organisations’ statement, the Supreme Court, after admitting the petition in question, also took cognisance of four other petitions “filed by various groups and individuals and clubbed all these with the main petition”.

The statement, addressing the public, explained that if Article 35A is “removed or tinkered with, then the rights of original citizens of Jammu and Kashmir on their immovable property and other such rights would be taken away and all Indians would be afforded a right to establish their settlements in length and breadth of the state pushing away the original citizens.” It added, “It is pertinent to say that the purpose behind this PIL is devious to change the demographic character of Jammu Kashmir and alter the nature of dispute that is internationally recognized.”

The statement emphasised that “The worry among the citizens of Jammu and Kashmir to resist against the attempted onslaught is very much justified,” later adding, “The powers that be are hereby put on notice to take all necessary steps to get the nefarious PIL…dismissed at the earliest in order to save themselves from its political ramifications and consequences.” The statement said that various organisations have already formulated a strategy “to contest the onslaught,” and that individual groups will follow this strategy until August 6, 2018, which is the date of the hearing. The statement also announced the “full support” of the groups participating in the press conference for the call for a strike on August 5-6. The statement said, “This matter is related to the life and death of the people of Jammu Kashmir and we all are ready to spill our blood to safeguard this law.”

The complete statement from the joint press conference can be read below, along with a list of organisations that participated in the conference: 

This Press Conference has been necessitated today to exhibit our unity in protesting the attempted onslaught on our hereditary state subject law.  We are accompanied by the representatives from cross section of the society comprising the civil society formations including business chambers and federations, transporters, tourism fraternity, horticulturists, industrialists, academia and other social, religious and cultural organizations.

Our state subject laws have been under attack ever since a PIL was filed by RSS backed NGO “We the Citizens” and admitted by the supreme court of India that challenges the validity of Article 35-A of Indian constitution. It needs to be reminded that Article 35-A affords a protective shield to the hereditary state subject law of Jammu and Kashmir that is in existence since 1927. After admission of this petition, the Supreme Court also took cognizance of 4 other petitions filed by various groups and individuals and clubbed all these with the main petition. History is witness to the fact that Article 35-A was enacted in the constitution of India in the year 1954 and since then several petitions were filed by different groups and individuals to challenge this Act. However all such petitions would get dismissed before their admission by the Supreme Court  only because of the prompt and appropriate defense by successive Governments at New Delhi. However,this time a situation has arised when Government of India has bizarrely  declined to defend their own provision of the constitution as it has not filed any Counter to the said PIL. This speaks volumes about the complicity of GOI in the attempt of removing or tinkering with the Article 35 A. 

We wish to inform the general public that if the said Article is removed or tinkered with, then the rights of original citizens of Jammu and Kashmir on their immovable property and other such rights would be taken away and all Indians would be afforded a right to establish their settlements in length and breadth of the state pushing away the original citizens. It is pertinent to say that the purpose behind this PIL is devious to change the demographic character of Jammu Kashmir and alter the nature of dispute that is internationally recognized. 

The worry among the citizens of Jammu and Kashmir to resist against the attempted onslaught is very much justified.  Let us make it amply clear that the hereditary state subject law of Jammu and Kashmir shall be protected at any cost even on the lives of the citizens and no tampering with this law would ever be tolerated. The powers that be are hereby put on notice to take all necessary steps to get the nefarious PIL filed by RSS backed NGO dismissed at the earliest in order to save themselves from its political ramifications and consequences. This matter is related to the life and death of the people of Jammu Kashmir and we all are ready to spill our blood to safeguard this law.   

As we have already stated that the protest of the people of Jammu Kashmir on this issue is in all purposes legal and necessary. Various organizations mentioned hereunder have unanimously charted out a strategy and program to contest the onslaught that has already been communicated and shall be followed by individual organizations initially till 6Th of August 2018, the day of hearing. We also hereby announce our full support to the call of strike given by JRL on 5th and 6th of August 2018. 

Participating organizations of this press conference: 
Kashmir chamber of Commerce and Industries (KCCI)
Kashmir Traders and Manufacturers Federation (KTMF Y)
Kashmir Economic Alliance (KEA Y)
Kashmir Economic Alliance (KEA F)
Kashmir Traders and Manufacturers Federation (KTMF R)
Federation chamber of Industry of Kashmir (FCIK M)
Jammu Kashmir Socio Economic Coordination committee (JKSECC)
Kashmir economic forum (KEF) 
Jammu and Kashmir contractors’ coordination committee 
Kashmir Center for social and development studies (KCSDS)
J & K JCCOPS
Kashmir valley fruit growers/ Dealers union
Western bus service 
Haji-Pir transport company 
Kashmir Motor drivers Association. (KMD)
Western motor transport company
New Kashmir Transport Company
Star Transport Company.
Tourist Taxi Operators Association.
Joint coordination committee of taxi Associations Parimpora 
All Kashmir auto Riskshaw drivers Association.
Kashmir hotel and restaurant association
JK Hoteliers Club
Associated Chamber of commerce and Industries Kashmir (CCIK)
House boat owners Association 
Batamaloo Traders Association.
All traders joint coordination committee Batamaloo.
 

The post Kashmir groups issue statement on PIL challenging Article 35A appeared first on SabrangIndia.

The petitioners also included some of the 272 sanitation workers who had in 1957 moved from Gurdaspur and Amritsar in Punjab to settle in Jammu to work as sweepers in the wake of an indefinite strike by the employees of the Jammu Municipal Corporation.

The petitioners contended that they represented the subsequent generation of the settlers who had gone to the hill state at the instance of the J&K government. The petitioners, the PIL says, were born in J&K and have been permanently residing and living in the State. The PIL has contended that the denial of right to settle in the state and avail facilities available to original inhabitants was violative of the Constitution’s Article 14, 15, 16, 21 and 32 as well certain clauses of Articles 19 and 29.

“The denial of right to seek admission in state-funded higher technical educational institutions, denial of right to get state scholarship and… denial of opportunity of employment in the state services and public sector undertakings and local bodies under the state government, denial of right to acquire and hold property for the purpose of shelter and settlement and denial of remedy of judicial review under impugned Article 35A, to the descendents of a 272 persons… has rendered the life of each one a without any meaning of being a human…,” says the PIL.

Courtesy: Two Circles
 

The post SC seeks Centre, J&K’s response on plea challenging Article 35A appeared first on SabrangIndia.

Image: Kashmir Observer

The desperation in the tone matched the unusual bonhomie between her and her main political adversary, Farooq Abdullah, patron of National Conference (NC), on August 8. Media reports said that Mehbooba called on Farooq to discuss the current political situation in the state. Article 35 (A) was said to be the main agenda of the meeting that was held in a ‘cordial’ atmosphere, as vouched by Omar Abdullah in a tweet. Ever since, other opposition parties including the Congress have called for a united voice against this move: rising above party and partisan politics and getting together, in one voice, against any tinkering or weakening the article. They have also suggested an all party delegation led by chief minister Mehbooba Mufti to petition the Centre on this issue; to apprise the people there about the disastrous fallout of the weakening or abrogating Article 35 A.

The row over Article 35 (A) has not only brought Mehbooba’s Peoples Democratic Party (PDP) and NC on the same page but also the separatists who have called for protests against moves to tamper with the Article 35 (A). The move is seen as having a potential of inflaming the already tense and sensitive situation in the state.

At the heart of this controversy, which is likely to throw up unique political equations at a certain level, is a petition filed by an RSS backed NGO in the Supreme Court challenging the validity of this constitutional provision. The petition has been pending in the apex court since two years.

Despite persistent pleas by the state government, the Centre has refused to challenge this legal intervention in the Supreme Court, enhancing the dangers of a possible lopsided hearing on the issue. Owing to the overtly sensitive politics of the state and in view of the historic special status, the issue assumes even greater significance.  

Article 35(A) empowers the J&K legislature to define “permanent residents” of the state. This section was added to Article 35 through a Presidential Order called The Constitution (Application to Jammu and Kashmir) Order 1954, issued under Article 370. The order superseded an earlier order issued in 1950, which provided the framework for division of powers between J&K and New Delhi under Article 370. The Article incorporates the safeguards for the citizens of the state provided in the state subject law promulgated by the Maharaja Hari Singh-led government in 1927.

Article 370 which remains the constitutional link between India and Jammu and Kashmir and also guarantees special status to the state stands eroded today and diluted through a slew of central amendments right since 1950s. The permanent resident provision, protected by the Article 35 A, today remains the core of this special status that the state enjoys. Striking down this crucial provision, Article 35 A, which was not passed by the parliament or ratified by the state legislature but came as a presidential order, may create a constitutional crisis, impacting several other such presidential orders altering the state’s special status, including the recent one on GST. 

Any debate on Article 35 (A) naturally invokes one on Article 370 as well, as the former was supposed to be a clarification provision to the latter. In 2015, a division bench of J&K High Court interpreted Article 370 as a permanent provision. “The Article 370, notwithstanding its title ‘temporary provision’ is a permanent provision of the Constitution. It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available”, pronounced the court in October 2015. Even if this verdict be challenged, a debate on these issues re-open the entire debate on accession, which is hinged to the constitutional provisions of Article 370 that form the vital link between Jammu and Kashmir and rest of the state.

The legal and constitutional technicality apart, the debates on Article 35 (A) and Article 370 are red rags that will further muddy the waters in Jammu and Kashmir, politically as well as socially, with dangers of not just a more lethal backlash in the Valley but also possible polarisation of state on dangerously communal lines. The issue thus brings political adversaries, NC and PDP, as well as Hurriyat on the same page. The consequences of attempts to tinker with the special status of the state in any way have been well grasped by political parties across the spectrum, barring the BJP. All of them have been advocating for initiation of dialogue and confidence building measures for resolution of Kashmir dispute. The BJP-RSS agenda, on the other hand, is to take away whatever little privileges the state enjoys owing to its special status.

In the midst of this fresh crisis, another petition pleading for striking down Article 35 (A) and Section 6 of the Jammu and Kashmir constitution has been filed in the apex court by a Kashmiri Pandit woman, Charu Walikhanna, who has maintained that she was denied the right to buy land in Jammu and Kashmir because she had married outside the state. The petition contends that the Article 35 (A) perpetuates gender inequality and strips a woman marrying outside the state of her permanent resident status. This narrow interpretation of the law, which is actually silent about gender, is erroneous and based on ignorance. 

Section 6 of the J&K constitution lays down: “Nothing in foregoing provisions of this part shall derogate from the power of the State legislature to make any law defining the classes the persons who are, or shall be permanent residents of the State.” It further states, “A Bill marking provision for any of the following matters, namely:
(a) defining or altering the definition of, the classes of persons who are, or shall be, permanent residents of the State;
(b) conferring on permanent residents any special rights or privileges;
(c) regulating or modifying any special rights or privileges enjoyed by permanent residents; shall be deemed to be passed by either House of the Legislature only if it is passed by a majority of not less than two-thirds of the total membership of that House. It also states, “The permanent residents of the State shall have all the rights guaranteed to them under the Constitution of India.” 
 
The Article 35 (A), thus, defines and qualifies the permanent resident of Jammu and Kashmir as well as guarantees fundamental rights and right to equality to these citizens as per the Indian constitution. Its silence on the rights of women marrying outside the side is settled by the clause that upholds the citizens’ constitutional rights which make no distinction on basis of caste, creed, religion or gender.

The apprehensions raised by the woman moving the Supreme Court are not without reason, however. The flawed interpretation stems from myths perpetuated for a long time, made worse by politicking by political parties over the issue.

In 1960s, the then Jammu and Kashmir revenue minister issued the orders for stamping the permanent resident certificates of women with a stamp saying, “Valid till marriage”. Noted political analyst Balraj Puri writes, “The fact is that neither the state subject law of 1927 nor the act under the state constitution (after which the earlier law in any case lapsed), provide for cancellation of the state subject; nor for different treatment of men and women. The state subject of Mrs. Ghulam Kabra and her right to inherit property was, for instance, challenged in the State High Court as early as in 1939 in Maharaja’s time on the ground that though a State Subject by birth, she had lost that status by marrying a non-state subject. The Court held that Ghulam Kabra was legal heir of the property which she could inherit.” (PUCL Bulletin, April 2004)

On the executive order of 1960s, Puri writes, “this order which lacked the force of law was differently interpreted.” He quoted the case of daughter of a senior bureaucrat of the state, SAS Qadri, who married, Mehmood-ul-Rehman, an IAS officer from outside the state, in 1973. “Her status as a permanent resident of the state and her right to inherit property of her father under that was declared valid by the Revenue Minister on the ground that ‘the constitution of Jammu and Kashmir or any other law does not provide for deprivation of a permanent resident of the state of his or her status’.”

Similarly, in 2002, a full bench of the High Court in a case, State of Jammu and Kashmir vs Dr Sushila Sawhney, said that daughter of a permanent resident of the State of Jammu and Kashmir will not lose status as permanent resident of the State on marriage with a person who is not permanent resident of the State of Jammu and Kashmir. One judge struck a discordant note with the argument that the rights of the woman should be limited only to inheritance of property.

Several similar petitions pending in the courts filed by women whose seniority or jobs were challenged on grounds that they had married non permanent residents since the 60s were also clubbed together by the Supreme Court which finally sent them back to the state government with the direction to come up with a suitable way that addresses the issue. 

Later, the state government appealed in the Supreme Court against the high court judgement of 2002. In 2004 the then PDP government in 2004 withdrew the appeal and moved a Bill in the Legislative Assembly seeking disqualification of a woman marrying a non-State Subject. The bill was passed in the assembly unanimously without anyone raising a whimper but failed the test on the floor of the upper house of state legislature. The BJP turned the issue into an opportunity to give the controversy a saffron colour by equating the state’s autonomy with gender oppression. The row took an ugly turn with regional divides being played up by BJP, Congress and Valley based parties and soon assumed communal overtones. 

 (To say that Jammu opposes Article 370 and Article 35 (A) would be an over-simplified and also an erroneous view. Interestingly, when it comes to preserving the interests of locals, there has been strong opposition to attempts to tamper with the article. Last winter, chemist shops in Jammu were shut for three days to protest against the PDP-BJP coalition government’s decision to allow a non-state subject to open 57 pharmacy shops in violation of the Article 370.)

In the face of stiff resistance from Jammu based women groups and some political parties in 2004 to the Permanent Resident Disqualification Bill, the government created a select house committee to look into the lacunae which left the law open to interpretation. The contents of the report tabled by the committee are not fully known but it has not sought any changes in the law, nor advised anyone’s disqualification. Successive governments, thereafter, have desisted from bringing back the contentious bill in the legislature. More significantly, the state subject certificates of women no longer bear the stamp ‘Valid till marriage’ since the last one decade. 

There is no way that legally the right of the woman to purchase property or retain her state subject right can be challenged. Article 6 of the J&K Constitution clearly upholds the right to equality as laid down in the Indian Constitution. Article 35 (A) clearly makes no reference to women losing their rights as permanent resident.

This kind of politicking in challenging the women’s status in courts or within the legislature has, thus, stood on a sticky wicket. There are enough safeguards in the existing laws to ensure that women’s status as permanent residents of Jammu and Kashmir cannot be challenged.

Walikhanna’s petition thus raises anxieties that are exaggerated and based on myths, deliberate or otherwise. Is her petition based on presumptions? Did some officials of revenue department prevent her from going ahead with purchasing land? Is it possible that perpetuation of myths and lies has created space for multiple interpretations of the law? Is it just a case of ignorance or a case of poor implementation of law? It is neither. The petitioner in question was never a permanent resident of the state and is Kashmiri by ancestry. Her petition that is based on the rejection of her claims to residentship of Jammu and Kashmir, made in a letter to the Governor, mentions that her family was part of the Kashmiri Pandit exodus during the Afghan period in the 18th century, at a time when the state was not even formed.

Interestingly, her petition to the Supreme Court includes the case of Sushila Sawhney, in which the High Court ruled against depriving her of her permanent resident status after her marriage with a non-permanent resident. The petition does not mention the verdict but selectively picks up the court’s observation (in Sushila’s case), “no law defining the Classes of persons, who are or shall be the permanent residents of the State has so far been enacted by the State Legislature in exercise of its power under section 8 of the State of Jammu and Kashmir Constitution” to argue that “under the guise of Article 370 and 35A, the men and women state subjects are subjected to different treatments and discriminated based on gender.”

These anxieties are as misplaced as the apprehensions created in the Valley of a demographic change through marriage patterns. That having been said, any bid to strike down the Article 35 (A) does enhance the dangers of alteration of the demographic profile of the state. Such fears are not off the mark.

For decades, the RSS has had a historic penchant for suggesting that the demography of the state needs to be changed to resolve the Kashmir issue permanently. Two months ago, union home minister Rajnath Singh suggested, without spelling anything, that the government had found a ‘permanent solution’ to Kashmir dispute. In recent weeks, Article 35 (A) has been raised, again, by right wing groups who are calling for a debate or simply demanding to revoke it along with Article 370. As for Walikhanna’s case, it is not known if it is inspired by presumptions based on half baked knowledge or plain mischief.

In this current context, for Kashmiris suspicious of the designs of the Hindu right wing, it is not difficult to connect the dots and see the RSS’ historic resolve, Rajnath Singh’s remarks, the present discourse, the Centre openly favouring a larger debate and the petitions in the apex court challenging the state’s special status as part of the same project. There is enough potential in the controversy for further causing provocation in an already volatile Valley, besides polarizing rest of the state on communal lines. The dangers of stirring this hornet’s nest are unimaginable. 

Related Articles
Unravelling the Article 370 Rhetoric & Hysteria
J&K: Dangerous Demographics: Linking Article 370 with the Pandits’ return

The post Challenging Article 35(A): A sinister plot appeared first on SabrangIndia.