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The nuances of 35A

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By Pratap Bhanu Mehta

The political legitimacy of the Indian state in Kashmir hangs on a very slender thread. This thread is the legitimacy of the Instrument of Accession, and the negotiations with Sheikh Abdullah in 1949, which led to the adoption of Article 370. We can heap the easy condescension of posterity on the constitutional arrangement that resulted. But the truth is this is the only mechanism that allows the Indian Union to legally exercise power in Kashmir. Abrogating that mechanism is not just abrogating a specific policy we may dislike; it is repudiating an important part of the legal edifice on which India’s claims rest. All that then remains is force and domination.
There is also the ground truth that the Indian state has a long record of betrayal of promises, democratic values and trust. The situation on the ground is impossibly oppressive, as if Kashmir is in the throes of a death wish. There is something to be said for a more nuanced debate on 35A, which I will come to shortly. But abrogating 35A under the circumstances would be playing with fire — the last act of betrayal.As a matter of law, the status of the article has been considered by the Supreme Court in the past. In at least two significant cases, PuranlalLakhanpal vs President of India and Others (1962) and Sampat Prakash vs State of Jammu & Kashmir (1969), the Court had settled one of the issues of contention, whether modifications could be carried out by a Presidential Order. Another interesting case, not on 35A directly but one which has a bearing on the constitutional status of Presidential Orders, is a judgment by Rohinton Fali Nariman and Kurian Joseph in State Bank of India vs Santosh Gupta.
In Madhav Rao Scindia vs Union of India, the Privy Purse case, the Court did uphold the idea that the Indian state needs to honour the terms and conditions laid out in different instruments of accession. It was in this spirit that in the Bachan Lal Kalgotra case, Justice Chinnappa Reddy, in a rare case of judicial forbearance, took the view that essentially laws governing Jammu & Kashmir are part of a political settlement, and it is essentially upto the political process to modify the terms of the settlement, not to look to judges to shortcircuit what should be a political negotiation. This may still be a wise position to take. In some ways, the Court is facing the consequences of shortcircuiting the political process in the Assam cases.
This is one route the Court can take. Politics must fix what politics broke. But this may not be entirely satisfactory. There are some real normative issues here. From a purely individual rights or economic integration perspective, the case for 35A is not clear-cut. At the broadest level, there is the contention of the petition that any restrictions that differentiate between residents and non-residents are inherently discriminatory. This contention is too wide: It would not only invalidate 35A with respect to Kashmir, but also with respect to several other states including Mizoram, Nagaland and Himachal. It is a measure of how communalised legal debates are that the focus is exclusively on Kashmir. But this contention would potentially invalidate any domicile requirements.
This may be a road we might want to go down. But this means giving up on another principle that underpins 35A. Under some circumstances, restrictions may be introduced to protect local cultural preponderance. This is the principle behind asymmetric federalism and a range of other protections. The challenge is that the application of this principle is deeply politicised. Which local cultural preponderances need to be protected is a function of social mobilisation, history or political sensitivity. So applications are inconsistent: Why should we worry about Assam’s demography being altered, if we are willing to alter Kashmir demography, as many BJP supporters claim? It will be foolish to think this question can be settled outside of political negotiations. Which is why there is a case for honouring treaties, and political settlement; finding some principle here will put stress somewhere else in the system.
There is another worry about blanket exemptions to states: The creation of judicial black holes. Let us, for a moment, assume that 35A is valid, that the J&K Assembly can define the meaning of the term resident. Does the exercise of this power come with no constraints, no requirement that they meet basic standards like Articles 14 or 21? The challenge with identity-based exemptions is they often give carte blanche to local authorities to persist with discriminatory practices. We have seen that in a number of cases were states and communities exercise this power. So one of the contentions in the 35A case is that the way the term resident is defined is discriminatory along gender lines; in some cases, it goes against principles of natural justice, denying long-standing residents rights.
So there are two options here. The first is to say that these injustices can be remedied by other means. The J&K High Court has been, as the Indian judiciary often does, partially remedying these deficiencies. The other option is to say that the Supreme Court can uphold 35A, without making the issue entirely a black box at the mercy of the J&K assembly, when it comes to issues of discrimination. In short, there are more nuanced options that balance competing principles.
But one cannot help remark on the surrealism of constitutional discourse on Kashmir. Ironically, 35A, which was meant to protect the demographic identity of Kashmir, proved to be a parchment barrier against one of the most significant episodes of ethnic demographic alteration: The expulsion of Kashmiri Pandits. Article 370, that underscores J&K’s special legal status, has actually given the Centre more untrammelled power over that state than it exercises over any other state. “Special status” here seems not like a recipe for peace, but a deadly joke all sides want to play. So while there is a powerful historical, legal and political argument for not abrogating 35A, it also behoves us to think beyond the cul-de-sacs in which we are stuck.
We can neither endure the historical patchwork we inherited, nor the means to go beyond it. The first task of statesmanship is to throw cold water, not fan the fires of polarisation. But it looks like Kashmir’s tragedy, oscillating between a heavy-booted state, and a destructive radicalism, will continue.
(Indian Express)


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Opinion

Silence and mayhem go together in India

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By Anand K Sahay

There is perhaps nothing more striking about Prime Minister Narendra Modi’s present tenure — which ends in a few months — than its silence on matters where the clear choice of right and wrong, moral versus immoral, ethics or the want of it, and adherence to the Constitution or its negation, has presented itself.

Since a clear endorsement of what society considers bad, wrong, undesirable or lacking in constitutional propriety or probity cannot be a public good, and may cost at election time, remaining quiet is designed as a clever tactic. Its purpose is to offer comfort to wrongdoers (sometimes evildoers) and suspected criminals, thus causing injury to the notion of what’s right, valid and appropriate conduct for an elected government.

That, in turn, amounts to a violation of the compact between the government and the country’s citizens, and causes visible injury to the oath every minister of the government takes at the time of being sworn in.

In the process the state and the government lose their authority. The emperor begins to be seen as being denuded. There may be murmurs of rebellion but the people do not rise in revolt because too much force is ranged on the other side. They would rather bide their time.

Two recent instances come to mind — though several more can be cited — of the regime’s sly silence. Consider first the case of M.J. Akbar in relation to the vigorous #MeToo campaign and the stunning allegations of sexual predation made against him by more than 20 women.

The minister of state for external affairs was eventually forced to resign under the weight of his omissions and commissions in the course of dealing with young women over whom he had authority. But the point here is the reaction of the BJP, the ruling party; the RSS, which holds that party’s moral compass and is its moral arbiter; and more importantly the government, especially Prime Minister Narendra Modi, who made Mr Akbar minister, and external affairs minister Sushma Swaraj under whom he served.

It would be understandable if all the above had remained circumspect and quiet when the minister was overseas on assignment. But BJP and RSS spokesmen, speaking on television, were anything but discreet. They in fact went out of their way to attack the women who had accused Mr Akbar — asking for proof of allegations of sexual misconduct as if these can ever exist (by the very nature of the alleged crime) — and the RSS representatives, in particular, maintaining that India “is not a banana republic and the rule of law exists here”.

In effect, the victims of the minister’s alleged predatory conduct were sought to be demonised and traduced. Those engaging in this sport gave no evidence of appreciating that moral uprightness is a requirement in governance, not legal proof, when confronted with allegations of wrongdoing.

They had obviously not heard of a former Prime Minister, a man called Lal Bahadur Shastri (who had resigned as railway minister in the Nehru Cabinet, accepting constructive responsibility when a train accident occurred).

This may be the RSS’ idea of morality, but the Narendra Modi government should have had its own mind on the matter since, unlike the RSS, the government is a creature of the Constitution.

The Prime Minister was morally duty-bound to give the minister marching orders upon his return to India if only to make the point that a sustained record of alleged crimes against women cannot be tolerated as it robs the government as well as the society of its dignity, and the entire class of women of their very being and soul. But Mr Modi maintained a sphinx-like silence as is his wont, and this encouraged

Mr Akbar to file a case of criminal defamation — pointedly not civil defamation — against the first woman to have raised her finger.

The government’s ear-splitting silence was consistent with its lack of any communication with the public whenever serious crimes against women rocked the country, signifying that the Union government had no sympathy for the females whose bodily integrity had been criminally encroached upon.

Two shameful episodes illustrate this — the Kathua gangrape and murder of an eight-year-old child near Jammu and the subsequent open public defence of the criminals by ministers of the J&K government to the shock of the entire country, with the government at the Centre remaining stoical. The second numbing episode is that of a BJP MLA in Uttar Pradesh, Kuldeep Singh Sengar, raping a minor girl and having her father tortured and murdered at a police station when he went there to lodge a complaint.

The second recent instance of governmental encouragement through the use of silence as tactic concerns RSS supremo Mohan Bhagwat. During his recent three-day outreach programme in New Delhi, the RSS leader declared, in effect, that while the Supreme Court may be adjudicating the Ayodhya title dispute, in reality it was the Temple Construction Committee (of the Hindutva outfits) that would decide the construction of the Ram temple (at the site where the Babri mosque was felled in 1992) — irrespective of the outcome of the court’s labours.

This was nothing if not heaping humiliation on the highest court of the land. But the government just stood and watched in a neutral stance. Perhaps the regime’s thinking is in harmony with the outrageous proposition outlined by the top boss of a dangerous outfit whose mention comes up in “riot after riot” (to recall the title of a book authored by Mr Akbar in his pre-BJP days).

This is not the only serious infraction the RSS leader is guilty of. Just weeks afterward, delivering his Vijayadashami address on October 18, Mr Bhagwat referred to the permitting of the entry of women to the Sabarimala temple (by a recent order of the Supreme Court) in inflammatory and prejudicial terms, choosing to renew his assault on the top court with an emotional pitch to the target audience, doubtless with a view to rabble-rousing.

In the context of the Sabarimala judgment, the man actually said that “repeated and brazen onslaughts” happened to “Hindu society alone”. In a Hindu-majority country, this is a call to arms for the Hindus on a false and hypocritical premise. The call to arms is not against the Supreme Court, not even only against the traditionally targeted minorities, but on the Constitution itself. Once again, the government answered the challenge with silence.

It is time to ponder if the leader of the RSS would have thought it prudent to speak in this manner and idiom if he didn’t have under his command a trained paramilitary-style volunteer force, which receives the benign attention of the government. It’s also worth wondering what’s left of the sheen of the government and the majesty of the law. Big trouble lies ahead. We may as well brace for it.

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Opinion

The truth of BJP victory in Kashmir

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By Rahiba R. Parveen

The Bharatiya Janata Party (BJP) has claimed victory in the urban local body elections in Jammu and Kashmir.
Even Prime Minister Narendra Modi hailed the “stupendous effort” of the party.

“I salute the entire team of @BJP4JnK for their stupendous efforts in the local body elections. I am glad that they reached out to every section of society and explained the Party’s development agenda,” he tweeted.

Both are factually correct. After all, the BJP did win 100 of the 624 wards in the Kashmir region — its best performance ever — and will head six municipal bodies.

It won over 212 of the 520 wards in Jammu, a notable feat in view of the anti-incumbency of the last four years.
However, there’s a subtext to the BJP’s big achievement.

No contest

Of the 100 seats that it won in Kashmir, the party had no opponent in 76. In at least two seats, even the party’s own candidate stayed away from the polling booth.

That’s not all.

Of the 157 wards won by the Congress, 78 were uncontested. Independents won 178 wards, of which 75 witnessed no contest.

Of the 624 wards in Kashmir, as many as 185 wards still remain vacant in the absence of any candidate willing to contest. A significant 231 saw a single candidate, while just 208 witnessed a contest.

In Nawakadal, for example, BJP’s Arif Majeed Pampoori got 27 of the 45 votes polled, while the total number of voters registered for this ward are 5,372.

In Karan Nagar, Ashok Kabul (BJP) won by 73 votes of 144 polled. All 73 votes were cast by migrants.

Another victory for BJP was in Bagh-e-Mehtab, where Bashir Ahmed Mir secured eight votes of the nine polled. This ward has 5,118 electors.

Nazir Ahmed Gilkar from Basant Bagh won 77 votes of 133 polled; there are 13,748 electors in this ward.

Farooq Ahmad Khan alias Saifullah (BJP) lost to Nakul Matto in Tankipora (ward 33). A former militant, Khan could only get four votes. Of the four votes, three were cast by migrants.

In four militancy-hit districts of south Kashmir, BJP won 58 wards. Around 34 winners in these wards are non-Muslims. In the Anantnag municipal committee, the BJP secured 29 of 132 wards. In Shopian, of the 17 wards, it won 12. In Kulgam, of the 47 wards, the party won eight. In the Pulwama municipal committee, of the 69 wards, the BJP won nine.

The Congress won 50 seats in Anantnag against the BJP’s 29. The grand old party won 16 wards in the Srinagar Municipal Corporation, while independents, including former National Conference spokesperson Junaid Azim Mattu, won 49 of the 66 wards.

In its stronghold Jammu, the BJP fared on expected lines. It won 13 urban local bodies, including the Jammu Municipal Corporation, and emerged as the single-largest party in eight others. The Congress managed to win just three committees.

Of the 37 urban local bodies, the BJP won in 212 wards while Congress won just 110 wards, with the number two spot going to independents — 185 wards.

For the opposition Congress, the loss of face in Jammu, what with the BJP facing huge anti-incumbency, would be worrisome, observers said.

The saving grace for the Congress was that it won all 13 seats of the Ladakh Autonomous Hill Development Council (LAHDC), Leh and five of 13 seats in Kargil. The BJP won the Ladakh Lok Sabha seat in 2014.

With the worst-ever polling percentage in the Kashmir Valley, the elections were always going to attract questions.
Adding to the controversy was the claim by governor Satya Pal Malik that a foreign-educated person would be the next mayor of Srinagar. That person, it now seems clear, will be Junaid Mattu. Immediately after the results were announced, separatist-turned-politician and People’s Conference leader Sajjad Lone nominated Mattu as his party’s mayoral candidate.

“Congratulations to PC Mayoral Candidate @Junaid_Mattu and the victorious candidates from PC for heralding a new change in Srinagar and thanks to Irfan Ansari and all my senior colleagues for his successful campaign management during the ULB elections,” Lone tweeted.

Governor Malik, who’s currently in charge of the state’s administration, said his government had managed to conduct “successful” elections under immense pressure.

“A biased person will count the percentage. My assessment of the election is everyone — both the mainstream parties, small parties, Hurriyat and terrorists — all of them opposed this election, but people still came (to vote),” Malik told ThePrint.

“In 2002 as well, the percentage was as low as it was (this time). So that way, I see no reason to feel very good or exalted. But yes, the basic thing which we should take note of is that entire election was violence-free. Not even a bird was harmed. In other elections — parliamentary and assembly — nine people died.

“We held these elections successfully. We could thwart the threats we (the administration) and the voters were given, and fight it out.”

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Opinion

TRANQUILITY OF PRESENT GENERATION: LOST LOVE AND CARE

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By SEHRISH SHAFI

Tranquility is a state of physical ease that has several dimensions. In this digital world every work is carried out by artificial machines like robots, mixers, washing machines etc. Our life is has been made very easy with these artificial machines and our lives have become dependent on these machines. Before a decade people were served by the food that was cooked on firepot, (Daan in Kashmiri) and it was having the best taste. Nowadays, we cook food in rice cookers and on electric heaters that has some dangerous aspects associated with these electronic gadgets and some of the diseases and risks have been related with the use of these gadgets.

In olden days people were busy in their work which they were doing manually, like washing clothes by hands, cooking food on fire pots, going one place to another by foot etc., thereby consuming less resources, that was having double benefits like keeping environment free from pollutants and those who were doing manual labor remained always fit and healthy. Their minds were also busy with their work with limited wants. They always feel themselves in a relaxed and comfort zone. Currently, humans are full of desires and wishes. They make themselves busy with different types of modern electronic gadgets. People want to do things with more and more comfort.

Those muddy and wooden houses with joint families, listening the folklores of our ancestors were full of love and affection. The joint meals, the sharing of happy and sad moments, the visit of neighbors and relatives, the harmony of villages, the celebrations of festivals all are missing from the present generation, and the credit goes to mobile phones. The irony is that if a daughter or a son wants to share something with their parents they can’t as their parents are either busy in offices or in parties or with mobile phones. This has made life of present generation very strained, full of anger, disloyalty etc. We have left that comfort or placidity in the houses of mud, where all family members lived together with love and reminding us the culture that was prevalent in valley before few decades.

Everyone in this digital world wants the comfort zone and in every nook and corner people searches the calmness and peace. The digital world has transformed almost every aspect of our life. No doubt present generation is having unlimited facilities still they are lacking the love and care. The artificial technologies will not provide them the care and love which they are of basic need. If we want to build a house, it must have a strong base and if the base is weak the house may fall at any time. So, is the case of present generation our base is so weak that we can fall at any level where it is difficult to recover and in teenage we need proper guidance and care from our parents or our elders that will have direct impact on our bright future and improper guidance or no guidance may make our future bleak.

Therefore, parents and elders have a role in shaping our future towards a better and happy life. They have to think, they have to ponder.

(The author is B. Sc I year student at Govt degree college Bijbehara)

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