New Delhi, July 24 (IANS) Even as the new BJP government explores all options to bring an end to the brutal cage match taking place in Kashmir, with the setting up of a delimitation commission as one of the prongs available on the table to correct the regional disparity, it is actively taking a view on the contentious Article 35A which prevents mobility and greater integration with the Union of India.

In its election manifesto for the hustings that concluded recently, the BJP laid bare its thought process on the sensitive issue. The manifesto said, “In the last few years, we have made all necessary efforts to ensure peace in Jammu and Kashmir through decisive actions and a firm policy. We are committed to overcome all obstacles that come in the way of development and provide adequate financial resources to all the regions of the state.

“We reiterate our position since the time of the Jan Sangh to the abrogation of Article 370. We are committed to annulling Article 35A of the Constitution of India as the provision is discriminatory against non-permanent residents and women of Jammu and Kashmir. We believe that Article 35A is an obstacle in the development of the state.

“We will take all steps to ensure a safe and peaceful environment for all residents of the state. We will make all efforts to ensure the safe return of Kashmiri Pandits and we will provide financial assistance for the resettlement of refugees from West Pakistan, Pakistan occupied Jammu and Kashmir (POJK) and Chhamb.”

It is believed that several Kashmir experts familiar with the ongoing drift in the valley have been used as a sounding board on this issue on Wednesday. While the Modi government failed to submit an affidavit stating its position on Article 35A in the Supreme Court, where a bunch of PILs have been pending since August 2014, two successive attorney generals — Mukul Rohatgi and K.K. Venugopal — had sought successive extensions until Governor’s rule was imposed in J&K in June 2018.

What then is this Article 35A which has everyone in a state of frenzy. Does it impact Kashmir Nationalism in any way? It is a provision incorporated in the Constitution giving J&K legislature the right 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.

It 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. Ergo, 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.

Significantly, the legislative or parliamentary route was bypassed with the Presidential Order which incorporated Article 35A into the Constitution. Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution. Which begs the question whether this Presidential Order over wrote the Constitution?

Since Article 35A was never debated and passed into law by Parliament, is it infructuous or null and void? 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 thus 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 35A 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.

In the long running history over this disputed Article 35A, there have been many twists and turns. Moreover, it is well-known that Rohingya illegals secured PRCs in Mehbooba Mufti’s regime. In late November last year, the State Administrative Council (SAC) headed by Jammu & Kashmir Governor Satya Pal Malik repealed the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001, popularly known as the Roshni Act, because it had “failed to realise the desired objectives and there were also reports of misuse of some its provisions”.

The Roshni Act envisaged the transfer of ownership rights of state land to its occupants, subject to the payment of a cost, as determined by the government. It was enacted by Chief Minister Farooq Abdullah’s government, and it set 1990 as the cutoff for encroachment on state land. The government’s target was to earn Rs 25,000 crore by transferring 20 lakh kanals of state land to existing occupants against payment at market rates.

The government said the revenue generated would be spent on commissioning hydroelectric power projects, hence the name “Roshni”. The SAC has ordered cancellation of all pending applications seeking vesting of ownership rights of state lands to their occupants. However, cases where such rights have already been transferred will hold.

In 2005, Mufti Mohammad Sayeed’s PDP-Congress government relaxed the cutoff year to 2004. During the tenure of Ghulam Nabi Azad, who replaced Sayeed as Chief Minister under a three-year rotation agreement, the cutoff was relaxed further to 2007. The government also gave ownership rights of agricultural land to farmers occupying it for free, charging them only Rs 100 per kanal as documentation fee.

Powerful vested interest hijacked the scheme. In 2014, a report by the Comptroller and Auditor General (CAG) estimated that against the targeted Rs 25,000 crore, only Rs 76 crore had been realised from the transfer of encroached land between 2007 and 2013, thus defeating the purpose of the legislation. The report blamed irregularities, including arbitrary reduction in prices fixed by a standing committee, and said this was done to benefit politicians and affluent people.

In February 2018, the PDP tried to unilaterally allow Gujjar-Bakarwal squatters on forest land to become de facto owners and ignored opposition from the BJP. In November 2018, the High Court restrained all beneficiaries of the Roshni scheme from selling or carrying out any other transaction in respect of the land transferred to them.

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.

–IANS

New Delhi, July 24 Post the seminal Delhi Agreement, a general sense of ennui soon drifted into the Valley, with the people getting the sense that they had become more weak, as Delhi continued to push the envelope and enfeeble Article 370 and even the Delhi Agreement which, in itself, was the first such attempt at paving the way for full integration rather than limited autonomy.

The bottomline was that Sheikh Abdullah signed off on the Delhi Agreement and then realised that his idea of an autonomous, even semi-independent Kashmir, was merely a delusion, an unreachable pie in the sky.

What were the dangers implied in the recommendations of “State Autonomy Committee”? Why did the Union cabinet trash it completely?

· One of the recommendations of the Committee is that Article 370 which has been incorporated as ”Temporary” be made ”Special” Article.

· The Committee recommended that J&K”s accession with Indian Union be reverted to only three subjects, viz., Defence, External affairs and Communication. In all other matters, the State will remain independent.

· The nomenclature of the ”governor” and ”Chief Minister” changed to ”Sadar-i-Riyasat” and ”Prime Minister”, respectively.

· The said Sadar-i-Riyasat shall be elected by the State Assembly, making him responsible not to the President of India but to the State Assembly.

· Another recommendation provided for the repeal of jurisdiction of the Supreme Court, Election Commission of India, and Comptroller and Auditor General of India.

· The Committee had also recommended the deletion of Articles 12 to 35 relating to Fundamental Rights.

· The report had provided for the withdrawal of Central Services such as the Indian Administrative Service (IAS) and the Indian Police Service (IPS).

· It provided that Articles 356 and 357 be made non-applicable to the State of J&K.

What would have been the state of affairs in 1989-when Pakistan-sponsored ”death by a thousand cuts” militancy had engulfed the whole Kashmir Valley-had the President of India not declared President”s rule in J&K? Furthermore, Sheikh Abdullah”s National Conference did not exactly cover itself with glory in the first flush of achieving autonomy in 1950. The following are some facts relevant to today”s examination:

· The September 1951 election to the State Constituent Assembly was conducted under State”s Election Law. The NC got elected all the 75 members rejecting the nomination papers of opposition candidates.

· The Kashmiri leaders have grossly misused powers they got under special status to deprive the people of Jammu and Ladakh (more than 50 percent of the population) of their legitimate rights. These people have lived as second-class citizens for the last 50 years.

· The NC government was lending full support (overtly and covertly) to plans of Pakistan”s Inter-Services Intelligence (ISI) to convert Jammu and Ladakh to Muslim-majority provinces. During last two or three years, about 25,000 Muslim families from Kashmir Valley have constructed their houses in Jammu Province, encroaching on government lands.

· After coming to power under Indira-Sheikh accord of 1975, the NC government passed the Resettlement Bill which provides for the return of thousands of families who left J&K for Pakistan in 1947. The Supreme Court has ordered the withholding of the said bill. What would have been the fate of J&K had the jurisdiction of Supreme Court not extended to the State?

· Granting autonomy to J&K has miserably failed to bring the State closer to India as is claimed by the propounders of the idea of ”Greater Autonomy”. On the contrary, it has become a major factor in converting J&K into a breeding ground for ISI and giving rise to militant Muslim separatism.

· In the 1996 Assembly election the NC obtained less than 15 per cent of the total votes. In those elections people had voted for the restoration of democracy. Moreover, it was not a referendum on greater autonomy as is claimed by NC.

· Barring a few, almost all sections of Kashmiri society have expressed their opposition to NC”s demand for more autonomy. They include people of the Jammu and Ladakh regions, as well as the Gujjars, Shias, Sikhs and Kashmiri Hindus.

· After coming to power in 1975, Sheikh Abdullah had also appointed a similar committee under D.D. Thakur, a senior NC Minister, to review various laws extended to J&K from 1953 to 1975. The D.D. Thakur Committee recommended that all the legislative entries made during that period are in the interest of the people of the State and thus should not be touched. Sheikh Abdullah had accepted the findings of the Committee.

The failed ”Four-point formula”

In 2006 the world came close to witnessing the forging of what would be known as the ”four-point formula” for Kashmir. Negotiated between then Indian Prime Minister Manmohan Singh and then Pakistani President Pervez Musharraf, the formula had sought a non-territorial solution for Kashmir. The LoC would become a line on a map that facilitated free and easy travel to Kashmir on both sides; the State would be demilitarised; both parts of the State would receive an agreed quantum of self-rule or ”azadi”; there would be a “joint mechanism” of representatives from both parts, with no executive powers, to supervise the working of the accord and consult on matters of common interest. The solution included free trade and movement across LoC.

WikiLeaks had revealed a US embassy cable, dated April 21, 2009, where Singh had confirmed this ”formula” to a visiting US delegation. Singh told the US delegation that Delhi and Islamabad had made great progress prior to February 2007, when President Musharraf ran into trouble. “We had reached an understanding in back channels,” Singh related, according to the cable. Singh went on to add that India wanted a strong, stable, peaceful, democratic Pakistan and makes no claim on “even an inch” of Pakistani territory.

It is noteworthy that this formula did not incorporate the aspirations of the Kashmiri people-including the Dogras, Kashmiri Pandits, Ladakhis, Sikhs, Christians, the Kashmiri Muslims of all hues including Sunnis, Shias, Gujjars, Bakarwals and Pahadis. After all, the call for ”azadi” is primarily among the Sunni Kashmiri-speaking Muslims who inhabit the Valley who continue to reject the very idea of being integrated into the Indian Union. Without this crucial input, the Four-Point Formula obviously could not succeed.

Historian and Kashmir expert, A.G. Noorani, once said as he weighed in on the Singh-Musharraf formula: No Indian government can possibly accept Kashmir”s secession from the Union and survive; no Pakistani government can possibly accept the Line of Control (LoC) as an international boundary and survive; the Kashmiris will not acquiesce to the partition of their State or the persistent denial of self-rule and human rights. The Four-Point Formula seemed to have passed Noorani”s test: It did not spell Kashmir”s secession; did not make the LoC an international boundary; and reunited the State de facto while granting an agreed measure of human rights for east as well as west Kashmir.

There is no difference of opinion with respect to the accession of State with India on two main issues, i.e., the Instrument of Accession and the Delhi Agreement. The rest of the powers, including residual sovereignty, are vested with the State under Article 370. All the Princely States were authorised to frame their own Constitution in their respective Constituent Assemblies. At that time only four States-namely, Saurashtra, Travancore and Cochin, Mysore and J&K-chose this option and set up their own Constituent Assemblies. Three of these States did not frame their Constitution, and only J&K formed its own Constituent Assembly and framed its Constitution, which exists to this day.

–IANS