Mockery of Mandate

kashmir

BJP-PDP shift from MoU for governance, National Conference going soft on separatists abetting terrorism in valley makes no sense when we give a look at their poll manifestoes

By DANFES

The J&K Chief Minister Mehbooba Mufti has to handle one of the toughest job among her other counterparts, firefighting all the while she has been in the saddle. Be it the violence after the Burhan Wani killing that killed more than a 100 people and blinded and maimed thousands or the Kashmir flag controversy the NIT fiasco, the Handwara killings over allegations that a college girl was molested, or the recent GST row — she just hasn’t had the time to have a sigh of relief. And now she is up against the biggest challenge of her political life. If she loses this one, she risks the chance of her party either getting wiped out or becoming irrelevant for a long time.

These days Mufti is trying to rally support over Kashmir’s special status that is facing what many here believe is a “judicial onslaught on its exclusive rights.” She has realized she needs to convince BJP – her alliance partner in J&K – and its right wing affiliates, more so, if she has to stay afloat as a regional satrap.

Mufti is exploring every bit of support to safeguard Article 35A that bars non locals from buying property or getting government jobs in the state. Article 35A gives the people of J&K exclusive rights and privileges in owning property and in getting jobs and scholarships.

The J&K chief minister apprised Prime Minister Narendra Modi of the “dangerous” consequences the state may face if the article is written off. At the end of the meeting Mehbooba claimed PM Modi was supportive. She is also seeking the support of Sonia Gandhi and other opposition leaders on the delicate issue.

Mufti has also met her main political rival and former chief minister Dr Farooq Abdullah and state opposition leaders to build a consensus that Article 35A needs to stay.

Her People’s Democratic Party (PDP) and Abdullah’s National Conference (NC) have strode to power advocating self rule and greater autonomy for the state. And Articles 35A and 370 lie at the core of their political philosophy.  Both the Kashmir-centric parties have committed to do whatever it takes to ensure the 35A is protected. Mufti warned Centre that “there will be no one to carry the tricolour in state if the act was tinkered with.” Abdullah said its abrogation would provoke a bigger agitation than 2008 Amarnath unrest.

The separatists, rocked by the recent arrests by NIA, have not taken Centrestage yet except for calling a strike on Saturday. The Kashmir traders, Kashmir chamber and transporters bodies have allayed fears and held protests.

But it is PDP and NC which will face existential crisis if 35A is shot down. They know for sure that for common Kashmiris, these are articles of faith on which their future hinges too. Especially, at a time when space for mainstream is shrinking due to the unabated violence following the killing of militant commander Burhan Wani.

OPTIONS BEFORE MEHBOOBA

Unfortunately, Mufti’s options are limited and she relies heavily on Centre to bail her out from a precarious position. On ground, she is exploring both the legal and political options.

Her government has filed a counter affidavit arguing similar pleas had been rejected by the apex court previously. Her legal team is contending and hoping the petition filed by the NGO, We the Citizens, is dismissed even though Supreme Court has said the issue needs be disposed off after six weeks. The case is likely to come up for hearing in the last week of this month.

Mufti’s worries are only growing as the Centre has remained non committal on the issue and not filed a counter affidavit. In fact, the BJP-led government feels that it needs to be examined whether the special status enshrined by Article 370 benefited or hurt Jammu and Kashmir.

Meanwhile, her government has begun preparing to contest the case. In the brief counter affidavit that was filed before the apex court, the J&K Law department will quote two judgments: Puranlal Lakhanpal Vs President of India & Others, (1962) and Sampat Prakash v. State of Jammu and Kashmir and Another, (1969). Both the Judgements endorse the state government’s views on the matter and benefit all state subjects of the state. The Mufti government has hired constitutional expert Fali Nariman to head the team to contest the case.

But it’s Narendra Modi-led NDA government’s unclear stand on the issue that is giving her sleepless nights.

So far, Delhi has decided not to file a counter-affidavit in the matter.

By abstaining from filing a counter-affidavit, Delhi has apparently toed the line of the petitioner, which is a “dangerous” approach, the opposition NC warned, and could lead to an “irreparable damage” to the state’s special status.

Politically too, Mufti’s options are few. She cannot do much except hope her conversations with opposition leaders ensure some pressure is built on Union government. And that her government gets some support to either delay or find some middle way to the crisis that otherwise has the potential to stoke more passions in an already simmering Kashmir valley.

Many are suggesting snapping ties with BJP would help her avert the crisis. But that won’t do. Her walking away from the alliance may or may not cause the government to fall, but will certainly have no bearing on whether the act stays or goes.

Observers believe she can do better by working within the system to make people at the helm realize the repercussions if the crucial act is taken down.

Moreover her quitting means Centre faces no resistance from the state parties and can actually go ahead with its business, if at all it intends to. And since governance and absolute governance will lie with the Governor – and he being essentially a Centre representative – the article can become a history without much fuss and ado. It is another story that there would be widespread violence, but what is done cannot be undone.

So the option of moving out of government would indeed be a bad idea and will have no bearing on what stand the union government takes on the article, although the issue is technical and will be dealt with by the courts.

ISSUES AROUND ARTICLE 35A

An NGO named ‘We the Citizens’ has petitioned the apex court seeking removal of Article 35A on the ground that the restriction imposed through its addition to the Constitution was beyond the President’s powers under Article 370(1)d.

The petitioner has contended that “The Constitution can be amended only by the Parliament as per procedure clearly laid out in Article 368,”

Similar prayers, however, were quashed almost instantly by the apex court in 1956, 1961 and 1970 – while upholding the powers of the President to pass constitutional orders.

In a major departure, the Centre this time around did not challenge the petition though the Mufti government has filed a counter affidavit seeking its dismissal. And the BJP at Centre is unwilling to commit either way.

The article was enforced in J&K through the Constitution (Application to Jammu & Kashmir) Order, May 1954 issued by India’s first president Rajendra Prasad. It was devised to protect state subject laws that had already been defined during the Maharaja’s rule and notified in 1927 and 1932.

APPREHENSIONS IN KASHMIR

The Valley, which has a largely Muslim population, fears that by striking down this president’s order, BJP and its affiliates want to resolve the Kashmir issue through sweeping demographic changes. And that, they think, will tell badly on the final resolution of the Kashmir issue, if ever there is one.

The separatists have alleged in the past that New Delhi has sinister plans to settle non locals in areas of Jammu and Ladakh – to start with, before they concentrate on Kashmir – essentially to change the Muslim majority character of the state.

They have accused the Centre of planning to build a “Hindu Vatican” at major base camps of Amarnath Yatra or “Israel type settlements” for non state subjects to alter the demography of the state.

Given the current public mood, the separatists can quickly mobilise a 2016-type agitation that can be detrimental to Mufti government which is already battling a serious rebellion of sorts.

The people in valley of Kashmir, Chenab comprising Doda, Kishtwar, Baderwah and Ramban and Pir Panjal (Poonch and Rajouri) – predominantly Muslim population – are extremely emotional about their identity which they feel can be guarded through article 35A and 370. So they will hit the streets if there is a threat to their existence as they don’t apparently see Muslims outside Kashmir doing well at this point of time.

Mufti has warned Delhi of the huge consequences in the wake of any fiddling with Article 35A. She is already on the back foot, given that there are daily reports of encounters, clashes and civilian killings. In fact, in the first seven months,134 militants, 44 security men and 21 civilians have been killed in Kashmir.

If push comes to shove and Centre does not budge on 35A, Mufti will have no way but to quit. In fact, no Kashmir-based party can expect to stay relevant if this crucial act is taken away. Neither PDP nor NC nor even smaller parties can afford to relax on this matter. There is already a feverish race to outdo each other on espousing this cause.

If PDP and NC are extremely nervous, BJP, especially its state unit,is in catch 22. BJP is ruling the state for the first time, and if its central leadership is seen as against Article 35A, then it runs the risk of making itself a pariah in J&K. No party, least of all the NC or PDP, would ever be eager to form a government with it. And the dynamics is such that you’d need one Kashmir party to form a government. That perhaps explains why the state BJP is not that vocal.

Secondly, the Valley will protest even more forcefully than how it did in 2016. While the mainstream in Kashmir did not protest Burhan Wani’s killing considering him an anti-national, they won’t any such thing holding them back this time.

Marginalising the mainstream would not be good news for Delhi as well in the long run as that segment has been the sobering influence.

The fight for 35A is bigger for the mainstream than it’s for the separatists who anyway “don’t believe” in the Constitution. For the common folk it would be seen as a battle for survival.

However, the big question before all the political parties that participated into the J&K Assembly Polls, are they following the election manifesto they showcased as testament if voted to power? In such case, biggest shift appears in PDP, BJP and National Conference stand. What would make ‘Kashmiriyaiites’ worry is current government’s shift from their MoU for governance, which was signed between the Late Mufti Mohammad Syeed and the BJP. And Senior Abdullah has made the situation further worst by taking side of separatists for petty political gains. Such a shift is nothing but mockery of the mandate which people of J&K had given in 2015 J&K Assembly Polls.

BOX STORY

Dear Muftis and Abdullahs, Don’t Live In Past!

By Adv. KC Mittal

The State of J&K has become a battleground of unwarranted controversies. Why should there be an issue about acquisition of property or sense of insecurity leading to communal fortification, within the country? Rather than pulling the strings in reverse direction or taking sides, we must act for betterment and harmony. In retrospect, the general perception created over the years that Article 370 grants special status, which comes in the way of purchase of property, may not be true.

Currently battle lines drawn on Article 35A, belatedly after 6 decades have added fuel to fire. Basically, the crossfire is an offshoot of issues pertaining to Article 370. Anxiously the present and former CMs, vociferously opposed the move but the reaction of CM Mufti dragging national flag and Muslim majority are rather unsavory. It reflects a mindset which is not conducive for the nation.

The sequences of events need to be viewed in right perspective. Legally, the constitutional and territorial aspects of J&K, including citizenship stood settled long back. Unquestionably, the State is an integral part of India, a position well documented and finds place in 1st schedule of the Constitution of India, as one of the State of Union.

The merger of the State in Indian domain under Indian Independence Act, 1947 was final, duly ratified by the State Constituent Assembly. Further, Article 3 of J&K Constitution, 1957 categorically provides that “State of J&K is and shall remain integral part of India”, which can’t even be amended.

The territorial boundaries had been well identified and defined. Every inch of J&K within the sovereignty of the then Maharaja as on 15th August 1947 form part of Indian Territory. This has been fortified by Article-4 of J&K Constitution as well.

Everyone, including separatists must not try to dig the graveyards, in futility. Their conduct damages the growth of people of J&K. Unfortunately, over the years they grew with internal and external support, rather than being snubbed and isolated at the very threshold. Surprisingly, elected representative under oath to uphold sovereignty and integrity of India, defy the solemn affirmation brazenly?

Post-merger, offices of “Sadre-e-Riyasat” and “the Prime Minister” were abolished substituting as “Governor” and “Chief Minister” at par with other states, a milestone achieved in 1965.

It needs to be emphasized that Pakistan has no legal right or locus standi over PoK including Baltistan, Gilgit or any part of erstwhile territories of Maharaja’s dynasty. China wants to raise its head and meddle, but J&K is not so vulnerable. Even they occupy areas of erstwhile territories of Maharaja. Both Pakistan and China have no authority to negotiate or enter into any agreement for corridor or establish any other project in these areas.

The scope and extent of powers conferred by Article 370 are undoubtedly explicit & advantageous but not detrimental, as projected. It empowers the Parliament of India to legislate on matters in Union or concurrent list, with the consent or concurrence of State Govt. Similarly the President of India gets authority to issue orders in relation to these subjects. Let us not undermine these powers since they were the source of radical changes over the years. We need to understand their implication legally and logically.

Amongst others, the most important was “The Constitution (Applicable To Jammu And Kashmir) Order, 1954”, for short “Presidential Order, 1954” issued by The President of India. By this order provisions regarding “citizenship of India” contained in Part-II of the Constitution of India were extended to J&K, retrospectively. As a result, people of J&K became citizens of India from January 26th 1950 — an exemplary step conferring Indian citizenship burying all other question about nationality. Whether someone reconcile or not, but constitutional mandate is binding. The 2-nation theory is misdirected and cynical; CM Mufti also rejected the 2-nation theory.

Article 35A, at the center stage presently was part of Presidential Order 1954, but does it confer nationality other than Indian citizenship. Noticeable, the Constitution of J&K in 1957 recognized “Citizenship of India” and rightly so, as such no use flogging a dead horse.

The legislative, executive and judicial powers underwent substantial changes due to powers under Article 370. In reality, the state cease to be a princely state and the scenario underwent complete transformation from the conditions as prevailed in 1927. Some persons want to live in past but they must change. We have travelled far ahead from those years. Three notifications dated January 31st 1927, 20th April 1927 and June 27th 1927 issued by Maharaja Hari Singh to grant preferential and protect proprietary rights to State Subjects of J&K, have undergone a sea change, over the years. Independent and separate States have lost their identity and kingdom. In 1927, each State had their independent control and regulatory mechanism. A person travelling from one state to another was considered as a foreigner, but after Indian independence, all country men are Indian citizen and not a foreigner or outsider in any state. No one can be treated as a stranger or an outsider. This mindset must change. These notifications have lost their relevance, intent and purpose, even enforceability to prohibit purchase of property to a citizen of India, from any part of the country. Any insistence or claim would be contrary to constitution.

The State has a Legislative Assembly of 111 members including 24 seats for PoK and the conduct of elections entrusted to the Election Commission of India. Proudly this set up gave right of franchise to every adult male and female electorate.

Noticeable, Article 371, 371A to 371D, 371F to 371J applicable to other states contain “special provision” but 370 has no such categorization. The general impression that Article 370 prohibits acquisition of property in J&K is fallacious.

The applicability of citizenship provisions of Constitution of India and Indian citizenship Act, 1955 to J&K is final and no confusion should be created. The term “permanent residents” used in Article 35A do not confer citizenship, not any parallel rights. Such an approach or mindset is certainly misconceived. As from 26.01.1950, the entire complexion changed and the concept of state nationality came to end, as such the earlier notifications have become otiose.

Examining from another angle, Article 35A, stands superseded by Article 6 of J&K Constitution, 1957, which duly recognizes citizenship of India conclusively. I am rather surprised why IPC, CrPC and CPC have not been made applicable so far. One of the areas of conflict is retention of community bastion for whatever reasons, but such approach is against the spirit of the constitution. Country can’t permit any fortification on community lines in any part, to endanger the unity and integrity of India; a situation on which the new generation must focus.

As regards J&K, some anomalies and conflicts should be addressed by central and state government administering jointly and invoke presidential powers to issue orders, rather than pushing people to fight on roads. A good sense and vision will help India to maintain peace and amity, a basic requirement of any civilized society.

(Author is for former Chairman, Bar Council of Delhi and former President, High Court Bar Association. Views expressed above are completely personal)