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Why Article 35A Matters

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By Burhan Majid

Ever since the BhartiyaJanta Party came to power in 2014 at the Centre, there have been calls by party ideologues to scrap Article 35A of the constitution of India.

Article 35A confers upon the government of Jammu and Kashmir the power to define permanent residents and give them special rights and privileges with regard to employment, acquiring immovable property, scholarships and other forms of aid in the state.

 

However, the debate has recently gained more traction with Union finance minister ArunJaitley attacking Article 35A in a blog. Terming it a “historical blunder,” he argued Article 35A was included “surreptitiously” in the constitution, and is, therefore, “constitutionally vulnerable”.

This has worried many within the state and out of it.

Abrogating Article 35A, and Article 370, from which the former inexorably flows, has long been an agenda of the BJP. Yet, the debate has lately remained concentrated around Article 35A. This is partly due to an overhyped writ petition filed before the Supreme Court challenging the constitutionality of Article 35A. The Court is yet to decide the matter.

It’s a settled constitutional position that the state of J&K enjoys a special identity within the constitutional framework of India due to a unique blend of historical and political reasons. This is well reflected in Article 370 of the constitution, drawing its roots from the Instrument of Accession the then Maharaja of Jammu and Kashmir signed with Union of India on October 26, 1947.

An overall reading of the Instrument of Accession and Article 370 establishes that the formerly princely state of J&K ceded the power to legislate to Union of India only in respect of three subjects – defence, external affairs and communication – subject to consultation of the state government.

In other matters, however, the concurrence of the state government is required. The same applies if the provisions of the constitution are to be applied to the state.

This is politically significant in that the constitution makers didn’t intend the application of constitution to the state of J&K ipso facto. However, given the historicity of the state, the constitution made its application subject to orders by the president from time to time.

It is to this effect, SardarVallabhai Patel observed in the constituent assembly:

“In view of the special problem with which the Jammu and Kashmir government is faced, we have made special provisions for the continuance of the state with the Union on the existing basis.”

In 1954, in the backdrop of Delhi Agreement of 1952, the President issued The Constitution (Application to Jammu and Kashmir) Order, 1954. The order extended a set of constitutional provisions including Part III on fundamental rights to the state of J&K. However, this gave rise to an imminent clash between fundamental rights of non-state subjects and the extant state subject notifications of 1927 and 1932 issued by the then ruler of the state Maharaja Hari Singh.

The notifications barred non-state subjects from acquiring immovable property and applying for jobs in the state. Issued to secure interests of the state subjects, the notifications were later endorsed under Para 8 of the Instrument of Accession.

In a bid to reconcile the clash, and in keeping with the spirit of Instrument of Accession and the Delhi Agreement, Article 35A was inserted in the constitution through the same Presidential order. Article 35A immunises the state subject notifications from challenge on the ground of being violative of Part III.

Is Article 35A ‘constitutionally vulnerable’?

The debate on Article 35A has had largely been in terms of its legality. Those who argue Article 35A is unconstitutional do so on two major grounds. Pertinently, these also form much of the substance of the writ petition. Therefore, it becomes important to examine these grounds in little detail to ascertain their legitimacy.

It’s argued that Article 35A was introduced by a Presidential order, or as the finance minister writes, “surreptitiously”, than by following the ordinary procedure of amendment under Article 368 of the constitution.

The truth is that Article 370 vests in the President power to extend the provisions of the constitution “subject to such exceptions and modifications as he may by order specify”. The Supreme Court endorsed this in Sampat Prakash v State of Jammu and Kashmir and Anr., 1970 AIR SC 1118 in which the court ruled “modification” as used in Article 370 includes an amendment.

The court even went on to say that “there is no reason to limit the word ‘modification’ as used in Article 370 only to such modifications as do not make any radical transformation.” The Court observed: “Article 370 is a special provision for amending the Constitution in its application to the state of Jammu and Kashmir…..Article 368 does not curtail the power of the President under Article 370.”

Be that as it may, an overall reading of Part III as amended by the 1954 order implies Article 35A is not a new Article as is argued. It’s merely a saving clause and creates an exception to the generality of Part III in order to save the pre-1947 state notifications of 1927 and 1932 from challenge under Article 13 of the Constitution of India.

Second, Article 35A is challenged on the ground of being violative of the equal protection clause under Article 14 of the Constitution. This argument lacks legal foresight in that “Article 14 protects classification for the purposes of legislation”. This was eloquently observed by the Supreme Court in Chiranjit Lal Chowdhury v Union Of India and Others, 1951 AIR SC 41.

The fact of the matter is that the classification here is based upon an intelligible differentia having a rational relation to the object sought to be achieved which is to preserve the autonomy of the state as spelt out in the Instrument of Accession and Article 370 of the Constitution of India. Interestingly, many other north-eastern states also enjoy similar protection.

Having said all this, it doesn’t legally make any sense when Article 35A is termed as “constitutionally vulnerable”. Yet, that the government may unilaterally abrogate Article 35A or may influence the Supreme Court in doing so can’t be ruled out in the current circumstances. In any case, the result would be disastrous.

If Article 35A is scrapped, it will certainly impinge upon the legality of the constitution order of 1954 in toto, and the subsequent amendments to it. That’s because Article 35A forms part of the larger set of terms and conditions for which the state government gave concurrence vis-à-vis the 1954 order. The concurrence was given on each and every clause taken together. The Government of India can’t cherry pick a clause from the 1954 order and scrap it. In case it does, rest of the 1954 order and the subsequent amendments to it will naturally loose legality and cease to bind the state.

The upshot is that if Article 35A is indeed abrogated, the Government of India has a legal obligation to devise a mechanism to restore what forms the premise of the provision. Else, it will turn the clock back to the constitutional position of the state that existed before 1953.

This will imply, among other things, the state residents will cease to be the citizens of India and the Supreme Court will no longer have jurisdiction over the state.

Cut to Article 35A, its abrogation will, in no way, pave way for the non-state subjects to purchase immovable property, apply for jobs, or settle in the state. This argument is fortified by the fact that the state subject notifications will continue to be protected under Para 8 of the Instrument of Accession as it explicitly recognises the “validity of any law at present in force in the state”.

(Burhan Majid is an assistant professor at School of Law, Hamdard Institute of Legal Studies and Research, JamiaHamdard, New Delhi. Views expressed are personal. Courtesy: thewire.in)


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Opinion

India’s perilous obsession with Pakistan

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By Nissim Mannathukkaren

Come Indian elections, the bogey of Pakistan has overwhelmed the nationalist discourse in the shrillest manner, with the Prime Minister and other Ministers’ relentless branding of the Congress/Opposition as ‘anti-national’ and as ‘agents of Pakistan’. Further, the Prime Minister even made an unprecedented threat of using nuclear weapons against Pakistan.
As a country born of the two-nation theory based on religion, and then having to suffer dismemberment and the consequent damage to the very same religious identity, it is obvious why Islamic Pakistan must have a hostile Other in the form of a ‘Hindu India’. But what is not obvious is why India, a (much larger) secular nation, must have a hostile antagonist in the form of Pakistan.
It is widely recognised that the fulcrum of the Pakistani state and establishment is an anti-India ideology and an obsession with India. But what has scarcely received notice is that India’s post-Independence nationalism has been equally driven by an obsession with Pakistan. Of course, this obsession acquires a pathological dimension under regimes, like the present one, which thrive on hyper-nationalism and a ‘Hindu India’ identity.
But, this hyper-nationalistic urge to ‘defeat’ Pakistan and to gloat over every victory, both real and claimed, is ultimately self-defeating, and comes with huge human and material costs. Much of these costs are hidden by jingoism masquerading as nationalism.
Words often used regarding the Pakistani state’s actions, even by critical Pakistani voices, are ‘delusional’ and ‘suicidal’, and rightly so. For, no level-headed state would seek to attain military parity with a country that is six and half times larger in population, and eight and a half times bigger economically. HussainHaqqani, the Pakistani diplomat and scholar, compared it to “Belgium rivalling France or Germany”. Pakistan’s vastly disproportionate spending on the military has been self-destructive for a poor nation.
In 1990, Pakistan was ahead of India by three places in the Human Development Index. In 2017, Pakistan was behind India by 20 ranks, a sad reflection of its ruinous policies.
More critically, the Pakistani state’s sponsorship of Islamist terror groups has been nothing less than catastrophic. What the world, including India, does not recognise is that Pakistan, ironically, is also one of the worst victims of Islamist terrorism. In the period 2000-2019, 22,577 civilians and 7,080 security personnel were killed in terrorism-related violence in Pakistan (the number of civilian/security personnel deaths from Islamist terrorism in India, excluding Jammu and Kashmir, was 926 in during 2000-2018).
The fact that Pakistan has suffered much more than India in their mutual obsession cannot hide the equally serious losses that India has undergone and is willing to undergo in its supposedly muscular pursuit of a ‘no dialogue’ policy with Pakistan.
Wars and military competition produce madness. Nothing exemplifies this more than India-Pakistan attempts to secure the Siachen Glacier, the inhospitable and highest battle terrain in the world. India alone lost nearly 800 soldiers (until 2016) to weather-related causes only. Besides, it spends around ?6 crore every day in Siachen. Operation Parakram (2001-02), in which India mobilised for war with Pakistan, saw 798 soldier deaths and a cost of $3 billion. This is without fighting a war. Add to this the human and economic costs of fighting four wars.
Granted, the proponents of India’s muscular nationalism who want only a military solution in Kashmir might close their eyes to the killings of some 50,000 Kashmiri civilians and the unending suffering of Kashmiris, but can they, as nationalists, ignore, the deaths of around 6,500 security personnel in Kashmir and the gargantuan and un-estimated costs of stationing nearly 5 lakh military/para-military/police personnel in Kashmir for 30 years?
Ten years ago, Stephen P. Cohen, the prominent American scholar of South Asia, called the India-Pakistan relationship “toxic” and notably termed both, and not just Pakistan, as suffering from a “minority” or “small power” complex in which one is feeling constantly “threatened” and “encircled”. Tellingly, he argues that it is the disastrous conflict with Pakistan that has been one of the main reasons why India has been confined to South Asia, and prevented from becoming a global power.
Here, one should ask the most pertinent question: why does India compete with Pakistan in every sphere, from military to sport, rather than with, say, China, which is comparable in size and population, and which in 1980 had the same GDP as India? (China’s GDP is almost five times that of India’s now.)
Of course, emulating China need not mean emulating its internal authoritarianism or its almost colonial, external economic expansionism. On the contrary, it is to learn from China’s early success in universalising health care and education, providing basic income, and advancing human development, which as AmartyaSen has argued, is the basis of its economic miracle. It is precisely here that India has failed, and is continuing to fail.
Therefore, despite India being one of the fastest growing major economies in the world since 1991 (yet, only ranked 147 in per capita income in 2017), its social indicators in many areas, including health, education, child and women welfare, are abysmal in comparison with China’s. Worryingly, in the focus on one-upmanship with Pakistan, India’s pace in social indicator improvement has been less than some poorer economies too. The phenomenal strides made by Bangladesh in the social sector are an example.
Here, a look at the military expenditures is revealing: while India spent $63.9 billion (2017) and Pakistan $9.6 billion (2018-19), Bangladesh spent only $3.45 billion (2018-19). Only a muscular and masculine nationalism can take pride in things such as becoming the fifth largest military spender in the world, or being the world’s second largest arms importer. The bitter truth hidden in these details is that India, ranked 130 in the HDI (and Pakistan, 150), simply cannot afford to spend scarce resources on nuclear arsenals, maintaining huge armies or developing space weapons. Besides, in an increasingly globalised world, military resolution between a nuclear India and Pakistan is almost impossible.
The more India, the largest democracy in the world, defines itself as the Other of Pakistan, a nation practically governed by the military, the more it will become its mirror. Any nation that thrives by constructing a mythical external enemy must also construct mythical internal enemies. That is why the number of people labelled ‘anti-national’ is increasing in India. India has to rise to take its place in the world. That place is not being a global superpower, but being the greatest and most diverse democracy in the world. That can only happen if it can get rid of its obsession with Pakistan.
(The Hindu)

 
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Opinion

Symbol of New (Hindu) India?

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By Sanjeev Ahluwalia

BJP president Amit Shah is technically correct to say that SadhviPragya Thakur, one of the accused in the September 2008 Malegaon (Maharashtra) bomb blast case, who is on bail, has a right, under our liberal electoral laws, to contest the elections. It hardly matters that she voluntarily claimed being part of the Hindutava forces which had pulverised the Babri Masjid on December 6, 1992 and that an FIR has been registered against her by the Madhya Pradesh police on the orders of the Election Commission.
A galaxy of BJP leaders headed by Lal Krishna Advani, who went on to become deputy prime minister, and Hindutava firebrands Version 1 from the 1990s era — SadhviRithambra, VinayKatiar, Hari Vishnu Dalmia, et al — were criminally indicted for conspiracy but let off by a CBI special court in 2001. The Allahabad high court upheld the order of acquittal in 2010. But curiously, the Supreme Court directed that the case be revived in April 2017, under the NarendraModi government.
To be honest, there was little reason, back then, not to indict both Kalyan Singh, the BJP chief minister of Uttar Pradesh, and P.V. Narasimha Rao, the Congress Prime Minister. Culpability for dereliction of duty runs deep and inefficiencies in the judicial system help gaming transgressors.
Our laws consequently acknowledge this judicial gap and do not bar a candidate from political office, even though serious criminal charges have been drawn up in court against the person and a trial is under way.
But that does not fully explain why the BJP chose her. After all, Bhopal is not just any other seat. It is the capital of Madhya Pradesh and she has been pitted against Digvijay Singh, a former chief minister of the state and a senior Congress leader.
More to the point, isn’t she out of sync with the BJP government’s soothing signature tune of “Sabkasaath, sabkavikas” (with everyone, for everyone)? Does this signal a major change in stance and hitherto is revisionist social policy likely to overshadow the imperative for economic growth?
Pragya Thakur has no qualms about evoking her mystical powers to “damn” (curse) her opponents, demonstrating a conflation between her private well-being and that of all Hindus — a distinction which is necessary in those holding public office. But ascetics and mystics live by the code of “bhakti” — a submersive ecosystem, in which the followers are one with the guru. This leaves no space for the rule of earthly, common law.
Bhakts believe the spiritual power of an ascetic’s curse causes irreparable harm. Such pervasive, blind faith begs the question — should India have lawmakers who exult in evoking their spiritual powrs to shield themselves from the law?
Given these rough edges, what compelled the Modi-Shah team to field SadhviPragya from Bhopal? Two motivations suggest themselves.
First, electoral strength breeds hubris. Nominating Pragya Thakur sends the message that a new, assertively Hindu India is on its way and those with different views should make way.
Hinduism is resilient because it absorbs and subsumes other beliefs. Think Tamil Nadu 70 years ago. Anti-Brahmanism, rationalism and primacy for Tamil culture and language — versus Hindi — drove the atheist Dravida movement to its peak. Today, with political power firmly with the Tamil middle castes, ritualistic Hinduism is resurgent in Tamil Nadu.
Hinduism facilitates Sanskritisation — a religious version of the Stockholm syndrome, where the marginalised empathise with and seek to emulate their oppressors, thereby perpetuating the status quo.
Even the Congress Party has succumbed. The symbols of ritualistic Hinduism — special prayers at temples and endorsements from Hindu religious leaders — are the norm. This is canny, since Muslims and Christians have nowhere else to go, at the national level — though the BahujanSamaj Party and the Samajwadi Party in Uttar Pradesh; Trinamul Congress in West Bengal; TelanganaRashtraSamiti in Hyderabad, the Communists in Kerala and the AamAdmi Party in Delhi offer classically secular, regional alternatives.
An alternative driver behind Pragya Thakur’s nomination could be sheer desperation, in the absence of a NarendraModi wave, unlike 2014. After all, the party lost Madhya Pradesh along with two other cow belt states to the Congress only a few months ago during the state Assembly elections. Fielding the Sadhvi is sure to rake up Hindu resentment against the Congress for subscribing to a counter narrative of “Hindu terror” around the 2008 bomb blasts. The credibility of our police agencies has sunk so low that in the public’s perception, the “caged parrot” syndrome of ruling party capture, overrides the merits of any police action.
But multiple poll surveys, thus far, do not validate significant electoral loss for the BJP. The most recent endorsement comes from SurjitBhalla’s new book Citizen Raj: Indian Elections 1952-2019. He forecasts a simple majority of 274 for the BJP on its own. Lord Meghnad Desai, a British peer of Indian origin, also endorses a clear win.
NarendraModi is no one’s tool. Were he to succeed, his game would be to tame the tiger that he is riding. This is risky. But a more grounded strategy could well emerge, which seeks to rid Hinduism of its caste-based fractures; infuse the religion with modern concepts of universal human rights and worry more about generating income and wealth for all, rather than protecting India from without whilst dividing it from within.
The Modi-Shah duo’s dodgy electoral tactics are not new. Encouraging social divisiveness; kitchen cabinets to bypass government structures; centralisation of authority; a quasi-presidential form of campaigning and the systematic decimation of potential opponents — all these have all been used by other parties in the past. Banyan tree leadership is hardly unique to today’s BJP.
What is new is the blinding speed with which the Modi-Shah team has executed their strategy of building a “New India” — a narrative which promises to change social endowments and norms in ways that have never visualised previously. Status quoists will resist this seismic makeover. Beneficiaries will support it. Make up your mind, dear reader, where you belong.

 
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Opinion

‘The TINA trick’

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By Anil Dharker

This state of despondency arises from many factors, the major one being the disappointment with the performance of NarendraModi’s government (bhakts always excepted).
Two abbreviations crop up in any conversation about the elections. Both give a dispiriting picture of the mood of the nation. The acronyms are NOTA and TINA, which as we all know, expand to None Of The Above and There Is No Alternative.
This state of despondency arises from many factors, the major one being the disappointment with the performance of NarendraModi’s government (bhakts always excepted). In 2014, there was a genuine Modi Wave caused by disillusionment with UPA’s drift and its alleged corruption; in direct contrast were Modi’s enticing promises of “development” and rooting out corruption and black money. The disasters of demonetisation and GST, rising unemployment and the unaddressed tragedy of agrarian distress has taken the sheen off Modi’s many promises.
NarendraModi knows; everyone in the BJP knows; thinking party supporters (bhakts always excepted) also know, that repeating the same promises again and again doesn’t fulfil them — action does — but implementation has either been negligible, or poor. This is why not one single speech of Modi talks of his government’s performance. It’s a strange thing to hear a prime minister going to the people for re-election without a word about five years of his government. Instead, he talks about his “muscular response” to Pakistan and he talks about Hindutva in a demagogic way reminiscent of Bal Thackeray, using words which a chief election commissioner like T N Seshan would have acted more strongly against.
Sadly, the EC is not the only institution the Modi government has eviscerated. If you really wanted to know what the BJP government has achieved in its five-year term, it’s this: Every institution, the Enforcement Directorate, CBI, the police in BJP-ruled states, the Income Tax department… name them, and they do the government’s bidding, even if many of their actions on the eve of elections are clearly political in nature and meant to influence the electorate.
This is where the TINA factor comes in. Even BJP supporters disillusioned with NarendraModi ask: If not Modi, who will be PM? Rahul Gandhi? Mamata Banerjee? Mayawati? They find all these options unacceptable. Unfortunately, people have short memories. Political turmoil brought in prime ministers as diverse as Morarji Desai, V P Singh, I K Gujral, Chandra Shekhar, DeveGowda and Charan Singh. Not all of them were a disaster. In any case, all of them were in the chair for just around a year each (except Desai, who had two years), far too short a time to judge a prime minister’s performance. More than that, it’s important to note the classic definition of a prime minister in a functioning democracy: He is the first among equals in the council of ministers. Would anyone in the present cabinet dare say that of NarendraModi? No wonder the BJP’s slogan for 2019 is “phirekbaar, Modisarkar”. And its manifesto is replete with photographs of Modi, significantly even on the cover. Apart from re-emphasising that Modi’s council of ministers consists of lightweights; the slogan underlines the fact that the BJP government is Modi, Modi and Modi. That’s how the TINA factor gets reinforced as part of the BJP’s planned campaign strategy.
Contrast that with the Congress’s slogan, “abhoga NYAY’, a play on the Hindi word to mean justice as well as highlight the party’s ambitious social welfare programme, with which it hopes to make an impact on the elections. It also removes any hint of a personality cult in the party, although clearly, Rahul Gandhi is the prime force in the election campaign. Perhaps, it’s also a tacit admission that the public perception of Rahul Gandhi as an unsuitable candidate for prime ministership hasn’t changed, although the man himself has grown impressively into a leadership role. But you need an open mind to notice that, and an open mind doesn’t seem to be a common attribute of our electorate, especially its urban component. The more educated you are, the more you are likely to hold on to your prejudices.
An interesting point to note is that even Indira Gandhi, a towering personality if ever there was one, used the slogan “garibihatao”, and not a personality-centric one. But that concealed the fact that she ruled her government and her party with an iron fist. Another interesting point to note is that in his constant attacks on “The Family” and “Dynasty”, Modi hasn’t said a word against Indira Gandhi. For all his visceral hatred of the Nehru-Gandhis, Modi is strangely silent about Indira: There’s obviously an unspoken and sneaking admiration there. When you think about it, it’s really not surprising. Indira Gandhi was the government, and no one else mattered. NarendraModi is the government, and he has made sure no one else matters. For all those enamoured of strong leadership, it might be salutary to remember its perils: Mrs Gandhi imposed the Emergency, she nationalised banks (a disaster in the long run), she abolished privy purses (a constitutional guarantee), she subverted most of our institutions, including even the judiciary, and she used departments like Income Tax to get even with political opponents. Aren’t the parallels uncanny? On the other hand, low-key, self-effacing personalities like LalBahadurShastri and Narasimha Rao made excellent prime ministers; in fact, the former had he not died so tragically early, may have lived to be our best PM ever.
NOTA, of course, is an expression of dissatisfaction with the whole political process, and who can blame people when we see the way our electioneering has been conducted, with its abuse and personal invective? But NOTA is not an option; the option really is this: Better not the devil we know than the devil we don’t, because the latter may turn out to be not a devil at all.

 
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