5 Implications of Scrapping of A.370

1. Article 356 under which the President’s Rule can be imposed in any state, will also be applicable to the UT of Jammu and Kashmir.
2. The central quota laws in school-college admissions and state government jobs will apply.
3. People from other states may be able to acquire property and residency rights.
4. RTI would be made applicable.
5. Certain provisions of the J&K Constitution which denied property rights to native women who marry a person from outside the State may stand invalidated.

34. ARTICLE 35A – CONTROVERSIAL ORIGIN

What is it?

Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

How did it come about?

Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.

The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.

So Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.

According to the Jammu-Kashmir constitution, a Permanent Resident is defined as a person who was a state subject on May 14, 1954, or who has been residing in the state for a period of 10 years, and has “lawfully acquired immovable property in the state”.

Only the Jammu-Kashmir assembly can change the definition of PR through a law ratified by a two-thirds majority.

Why does it matter?

The parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution. Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution. So did the President act outside his jurisdiction? Is Article 35A void because the Nehru government did not place it before Parliament for discussion? A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the President’s powers under Article 370 to ‘modify’ the Constitution. Though the court observes that the President may modify an existing provision in the Constitution under Article 370, the judgment is silent as to whether the President can, without the Parliament’s knowledge, introduce a new Article. This question remains open.

A writ petition filed by NGO We the Citizens challenges the validity of both Article 35A and Article 370. It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of Jammu and Kashmir was never accorded any special status in the Constitution. Article 370 was only a ‘temporary provision’ to help bring normality in Jammu and Kashmir and strengthen democracy in that State, it contends. The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.

The petition said Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.

A second petition filed by Jammu and Kashmir native Charu Wali Khanna has challenged Article 35A for protecting certain provisions of the Jammu and Kashmir Constitution, which restrict the basic right to property if a native woman marries a man not holding a permanent resident certificate. “Her children are denied a permanent resident certificate, thereby considering them illegitimate,” the petition said.

Why does it matter?

Attorney-General K.K. Venugopal has called for a debate in the Supreme Court on the sensitive subject.

Recently, a Supreme Court Bench, led by Justice Dipak Misra, tagged the Khanna petition with the We the Citizens case, which has been referred to a three-judge Bench. The court has indicated that the validity of Articles 35A and 370 may ultimately be decided by a Constitution Bench.

Counter View

The view from the Right is that by striking down Article 35A, it would allow people from outside Jammu-Kashmir to settle in the state and acquire land and property, and the right to vote, thus altering the demography of the Muslim-majority state.

The state’s two main political parties, PDP and NC, contend that there would be no J&K left if this provision is tampered with, and have vowed to fight the battle together.

Former Chief Minister Mehbooba Mufti had warned that if Article 35A is removed, there won’t be anyone left to carry the Tricolour in Kashmir; Omar Abdullah has called it the death knell for pro-India politics in the Valley.

ISSUES BEING DEBATED

Article 35A, first, the Constitutionality of insertion of Article 35A, and second the conception of equality among the Indian citizen.

33. Article 370 & Procedure for Amendment of Constituion

SPECIAL PROVISIONS

The Indian Constitution protects certain sections of the society which have faced injustice historically. In the similar vein, the Indian Constitution protects certain States to immune from the Constitution under Part XXI titled ―Temporary, Transitional and Special Provisions‖ from Articles 369 to 392. In this Part, the Indian Constitution provides temporary provisos to the State of Jammu & Kashmir (Art 370). The Indian Constitution also provides special provisions to State of Maharashtra and Gujarat (Art.371), Nagaland (Art. 371A)Nagaland (Art. 371A), Assam (Art. 371B), Manipur (Art. 371C), Andhra Pradesh (Art. 371D), Sikkim (Art. 371F), Mizoram (Art. 371G), Arunachal Pradesh (Art. 371H), Goa (Art. 371-I) and Karnataka (Art. 371 J). The object behind to provide ―special‖ and ―temporary‖ provision to the certain States was to protect these State‘s autonomy in some areas.

LIMITS ON POWERS OF PRESIDENT

The issue of consideration is, besides giving assent to the Bill passed by the Both Houses (Lok Sabha and Rajya Sabha), President of India has sole legislative power under article 123 to make ordinance when either house of the Parliament is not in session. These legislative powers of the President have only six-month effect; in other words, it is the authority to make laws without discussion in the Parliament in urgency for a shorter period. It is an exception in the making law not a general rule or a permanent measure. In the Constitutional scheme, the President of India has no legislative power to amends the Constitution by bypass the democratic process. President‘s legislative, executive and judicial power is subjective to aid and advice by the Council of Minister (Art 74), but all these powers do not allow to the President to go beyond the spirit of the Constitution.

POWERS OF PRESIDENT VIA ARTICLE 370

370. Temporary provisions with respect to the State of Jammu and Kashmir

Unparalleled Special Status to Jammu & Kashmir

Power of Parliament to make laws for the state is limited to – external affairs, defence, communications and ancilliary matters.

Such other matters in the said Lists (Union and Concurrent) as, with the concurrence of the Government of the State, the President may by order specify.

1 (d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify

Nowhere in the Article 370 mentions that President of India has the power to amend the Constitution or insert a new Article in the Constitution? The Article 370 only states that the President can make any exceptions and modifications with the concurrence of the Government of the State. Subclause 1 (d) of the Article 370 states that: ―Such power of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify.‖

POWERS TO AMEND THE CONSTITUTION

Article 368 is the only way to amend the Constitution, not the President. The marginal note of Article 368 States ―Power of the Parliament to amend the Constitution and procedure, therefore‖ which means it is the Parliament that has the power to amend the Constitution.

Short Takes: Kashmir Unrest

Topic: Kashmir Unrest

"People of Jammu and Kashmir had enormous faith in Atal Bihari Vajpayee….he used to say 

'Insaniyat, Kashmiriyat and Jamhooriyat are key to progress of Jammu and Kashmir'. We have to take the state to new heights through these pillars."

- PM Narendra Modi

{Translation: Insaniyat (Humanism), Jamhooriyat (Democracy) and Kashmiriyat (Kashmir's age-old legacy of Hindu-Muslim amity)}

Na bandook se na goli se, baat banegi boli se...

- Mufti Muhammad Saeed

(Former CM of Jammu and Kashmir)

Democracies are, at their core, processes for peoples with different views and interests to negotiate civic arrangements; riot police are a symptom of their breakdown, not a solution.

Who was Burhan Wani?

Burhan Wani was a famous militant leader in the Kashmir Valley.

• ·     22-year-old “commander” of the Hizb-ul-Mujahideen
• ·     Credited with mobilising a new generation of the disaffected in Jammu and Kashmir.
• ·     His engaging manner had turned him into a legend before his death, as he coasted on personal charisma and social media smarts to become the ‘poster boy’ of a new phase of Kashmiri militancy that is homegrown.
• ·     Wani was gunned down in an encounter by the security forces in the district of Anantnag. This led to the start of massive protests in the valley.
• 
  

Why did protests emerge after his encounter?

Burhan was able to establish a connection with hundreds of youth in the Kashmir Valley.

Short Term Reasons

After having got their man, the security forces failed spectacularly in managing the situation.

In the violent aftermath of his death, young men and women have taken the fight to the security forces on the street.

Long Term Reasons

Young men and women have become more embittered and radicalised recently. Their angst is directed at draconian laws that let military abuses on civilians go unpunished.

There is a return to home-grown insurgency, with religious radicalisation acting as a force multiplier this time. The latest uprising in Kashmir was waiting to happen for some time.

Trust deficit between the Valley and New Delhi has been eroded over the years and has now reached breaking point. For too long, Kashmiris believed that the Centre would address their grievances politically. They believed that in 2008, when civilians were killed, and again in 2010, when 116 young persons were killed.

There was a glimmer of hope in 2010, when the Centre had tried to address the anger then by sending a team of interlocutors, who painstakingly spoke to several stakeholders and turned in a report that referred to Kashmir as a “dispute”. No one, however, paid attention to the recommendations in the interlocutors’ report.

How the situation has evolved from protests of 2010 to the 

current cycle of protests?

In 2010, the stone-wielding youth were protesting against a fake encounter in which three innocents were killed. The demand for justice lay at the heart of the unrest. This time, the anger is widespread and the enraged youth have no demands. They appear fed up with New Delhi’s unwillingness to accept the very political nature of the Kashmir problem.

Now they are protesting for the encounter of a militant commander!!

How should the situation now be handled? 

Or, in future, if such a situation emerge, how should it be 

handled? What lessons can be learnt from the present episode?

It is imperative that any response should be measured and never grossly disproportionate to the cause of action — forgetting this lesson in Kashmir has time and again led to the fuelling of a further cycle of protests, to attracting more impressionable and aggrieved youngsters to attack symbols of authority.

In future multi-pronged approach can be adopted:

Security Measures

Use of Pellet Guns to control the attacking mobs have led to many civilians being killed or injured in the eye this month, with a high percentage having possibly lost vision altogether. Appropriate measure of force must be used to control the rioting mobs.

Inadequacies of Security Measures:

But these protests cannot be completely controlled by brute force.

When tens of thousands of Kashmiris hit the streets in mourning for a fallen militant, there is a spectrum of political opinion that presents itself. They can be dispersed with pellets. But if ‘mainstream’ politics does not speak to them, if their arguments are not heard patiently to be countered or fleshed out, as the case may be, the calm that eventually obtains will be an illusion.

To put the mourners of Burhan Wani in a with-us-against-us binary would, as Omar Abdullah has said, give him a recruiting power from beyond the grave. WE MUST SPEAK WITH THEM.

Political Dialogue

The Central and State governments have reached out to the Opposition and separatist leaders to dissuade young Kashmiris from street violence. But appeals for calm must be strengthened with a demonstrable capacity for a political conversation.

Government must show a willingness to speak especially with the All Parties Hurriyat Conference. Speaking with separatists is not something unheard of Indian politics. This is something that the Indian state has long done, witness in states from Manipur to Punjab to Nagaland.

New Delhi should push Kashmiri separatists to move beyond slogans, and spell out precisely what democratic rights they seek, so a conversation can begin on whether or not these can be met within the Indian Constitution.

Constitutional Solution

With some imagination, ways can be found to grant greater autonomy with no threat to India’s sovereignty. That was the case up until 1953, after which the state’s autonomy was continuously diluted. The time has come to go to the next level on Kashmir, which is bleeding India, tarnishing its image both internally and externally, providing ammunition to Pakistan and alienating a whole generation in the state. A government that cares for its people will have to walk the talk.

The 2010 team of interlocutors in its report had said: “We recommend that a Constitutional Committee (CC) be set up to review all Central Acts and Articles of the Constitution of India extended to the State after the signing of the 1952 Agreement.” No progress has been made since then.