Kr Swarn Kishore Singh
For last few months, the debate over Art. 35A is on the rise, some of the big titans declared it ultra vires, some questioned the procedure with which it was introduced and made a part of constitution of India, one even went on to say that it was never part of the Indian constitution, and even disheartening is the manner in which every group is having a claque to cheer the scrimshank behaviour of their guy. These statements find their origins in some sort of desperation of those particular individuals to appease someone at the helm of the affairs and get something in quid pro quo. What is worth mentioning here is that since federalism is part of our basic structure and what is going to be the defining line after which the term federalism is going to be detrimental to the unity of the federation?
As Justice Subba Rao says in his dissenting judgment in case State of West Bengal vs Union of India (1963);
“The future stability of our vast country with its unity in diversity depends upon direct adherence (to) the federal principle, which the fathers of our constitution have so wisely and foresightedly incorporated therein. This court has the constitutional power and the correlative duty; difficult and delicate one to prevent encroachment, either overtly or covertly, by the union on state field or vice versa and thus maintain the balance of the federation.
The US Congress had admitted Oklahoma to statehood on November 16, 1907 after acceptance of a stipulated condition that Guthrie would be its temporary capital till 1913. But after three years i.e. in 1910, legislature of Oklahoma passed a law for removal of Guthrie as state’s capital and keeping Oklahoma City as new capital city. Following this, a suit was filed challenging the law bypassing the stipulated condition for admission to statehood. The question of law was whether the Congress, in its acknowledged discretion to admit new states could impose conditions that would bind the states after its admission. The Supreme Court of USA held with a majority of 7:2 that it could not. The Supreme Court of USA held that the restrictions that the Congress had placed on Oklahoma were invalid further upholding the rights of the state to locate its capital wherever and whenever it decides to. The Supreme Court further read into the American constitution the unwritten understanding of state equality and observed that “the constitutional equality of the states is essential to the harmonious operation of the scheme upon which the republic was organized. When equality disappears we may remain a free people but the union will not be the Union of the constitution”.
But mind you, the federalism of USA is quite different from Indian system. We here in India are not that strict a federation, here we have Article 3 of Constitution of India which goes on to say that the Parliament may by law can even extinguish a state, leave aside choice of capital or anything and this has been stamped by Hon’ble Supreme Court of India in Babulal Parate case.
We have got a particular system wherein the spheres of action of both state and centre are clearly defined i.e. centre list, state list & concurrent list; with an Apex Court acting as the watchdog to put a check on the party intruding other’s turf. But when it comes to Jammu & Kashmir, the whole system reverses; to pull in a lot of constitutional definitions & interpretations, historical perspectives, agreements and what not, which makes it more of a case of jumbled threads of sentiments of us Indians than any issue whatsoever.
This whole fiasco has its roots in the fetish of Hari Singh, the last king of the Jammu & Kashmir to stay independent and not to accede to India or Pakistan just because this land was bought by his great grandfather. The indecisiveness to decide between India, Pakistan and then subsequent exploitation of that indecisiveness by the Kashmiri fundamentalist parties and Nehru’s obsession for conservation of friendship with Sheikh Abdullah, Sardar Patel’s passiveness; all these factors finally led to birth of this demon called Article 370 which we are fighting for last 70 years and more.
If only legal aspect is considered and the historical perspective is ignored while discussing Art. 370 & Art. 35A of Constitution of India, then it would be very irresponsible on our part. It goes like, on 20th June, 1949, Hari Singh retired to hand over the throne to his son, Karan Singh. Karan Singh, on 1st May 1951 issued a proclamation for establishment of a state constituent assembly, constituting of representatives of the people, elected through an election process for framing of a constitution for the entire state. The whole process was completed in three months and Karan Singh had a constituent assembly of 75 members with Sheikh Abdullah and his party sweeping the elections completely. Imagine the credibility of the elections, when in 2020’s the Election Commission isn’t able to complete the whole process in three months, how come Karan Singh completed the whole election process, starting from proclamation of elections till the declaration of the results in ninety days. The way elections were conducted and subsequent victory of Sheikh Abdullah bears testimony of degree of friendship between Mr Nehru & Sheikh Abdullah. Infact the magnitude of their friendship of can be estimated by virtue of a letter written to Vijay Lakshmi Pandit, sister of Jawahar Lal Nehru on 10 May, 1950, wherein Mr. Nehru had said; “I am sorry to say that Sheikh Abdullah is behaving in a most irresponsible manner. The most difficult thing in life is what to do with one’s friends”(sic).
After the completion of elections, Mr. Sheikh Abdullah, being supreme leader of the party which had literally swept the elections made the opening speech in which he clearly enumerated the objectives of the assembly. He had said that apart from framing of constitution for the state, the assembly was supposed to come up with its reasoned conclusions regarding the accession and the future of the state. He had even given three alternatives i.e. accession to India, accession to Pakistan or complete independence. The drafting committee comprising of the members of constituent assembly came up with a report which ratified the accession of state of Jammu & Kashmir to India and the same report was adopted by constituent assembly. The constituent assembly finally established the state constitution on 17th November, 1956 & it came into full force on 26th January, 1957.
Then there is section 3 of the constitution of J&K, which says “the state of Jammu & Kashmir is and shall be an integral part of the union of India”. Further the proviso which further cements the position and claims of India over J&K is section 147 of constitution of J&K which says” no bill or amendment seeking to make a change in the provisions of section 3 or 5 shall be introduced or moved in either house of the legislature.
Then there is issue of Art. 370; for that I don’t have to say anything but to present a paragraph from an interview of Professor Balraj Madhok published in magazine Organizer in which he had said; ” Nehru sent Abdullah to Dr. Ambedkar to explain to him position and draft an appropriate article for the constitution. Ambedkar was a good friend of mine. He himself told me that after hearing Abdullah patiently, he told him, “Mr. Abdullah, you want that India should defend Kashmir, India should develop Kashmir and Kashmiris should have equal rights as citizens of India, but you don’t want India and any citizen of India to have any rights in Kashmir. I am the Law Minister of India. I cannot betray the interest of my country”(sic).
And as far as issue of 35A is considered; it is worthwhile to mention here the constitution of India was enforced on 26th of January 1950 & on the same day by exercise of powers vested under the President of India under Art. 370, first constitution (Application to Jammu & Kashmir) order was passed. Since then more than 45 constitutional orders with respect to application of constitution of India to Jammu & Kashmir have been passed but the most tyrannical and draconian of them was Constitution (Application to Jammu & Kashmir) order, 1954.
Infact Constitution (Application to Jammu & Kashmir) order, 1954 has its roots in another despotic document namely Delhi agreement after which a presidential order after exercising of powers given under Art. 370 was passed.
It is really unbelievable that by virtue of Constitution (Application to Jammu & Kashmir) order, 1954, Indian executive passed order wherein Art. 7 & 81 have been changed and by just cursory look at the draft gives us an impression of the tyranny with which that order was passed. Alterations in Art.16 & Art. 19 & omission of Art. 32(3) exhibited the level of insensitivity towards the people of J&K on the part of the then Union Government.
This Constitution (Application to Jammu & Kashmir) order, 1954, is nothing but a blot on the constitutionalism itself. Infact the Art. 370 and vesting of residuary powers in state is a licence at the hands of few families in the state to come up with any tyranny against which we have no remedy. This Art. 370 is a tool at the hands of State Government to keep us away from getting into mainstream and whenever we ask the government for some rights which are guaranteed by Constitution of India; we are handed a very lame excuse which is as, “This act doesn’t apply for state of Jammu & Kashmir”. Panchayati elections have been held only twice in last 70 years; there was no Juvenile Justice Act in the last till 2013; this is the real face of 370 for us.
As far as legal aspect is considered; the procedure with which 35A was incorporated in constitution of India is perfectly fine and it is very much given in Art. 370 itself. It is very much part of Constitution of India but only to the extent of its application to Jammu & Kashmir.
But what needs a re-introspection is not the legality of this constitutional order but its constitutionality. We are still ready to protect the people who had left us in 1947, crossed over to Pakistan and never came back but the people who are serving us for last more than 70 years aren’t yet part of us. How come my sister who is equal co-sharer in my dad’s property as is my brother gets alienated the day she is married outside the territory of Jammu & Kashmir? Such laws find more correlation to those of some primitive tribes in Africa who aren’t married outside their tribes just to protect their culture and keep the dilutions away. We are living in 21st century and having such laws is indeed a blot on our democracy and civilization as well.
And then there are two popular political beliefs in the state of Jammu & Kashmir of two major regional political parties i.e. autonomy and self-rule. Unfortunately, autonomy is a concept which has its origin in aspiration of a person who at one point of time aspired to be Prime Minister State of J&K, consequently making J&K alienated from the federation, which is sort of undoing of the instrument of accession and the subsequent resolution of the constituent assembly of the state. But the document of self rule which is so-called framework of another regional political party of the state for resolution of Kashmir issue is even worse. It is nothing but a license for Pakistan to enter the territory of Kashmir and for Kashmir to blackmail India even more. That document is having such utopian ideas that one will die laughing as they are more laughable than thought-provoking.
Just like a coin gets defaced and its engraving gets erased after being in circulation for long time, the Kashmir issue has got denuded of its true issue. Kashmir issue is different issue for different people, and to some people it means no more than a cabinet rank or a shopping mall in Dubai.
It is high time for Government of India to at least stop considering the people of Jammu & Kashmir as lesser beings. The Union Government and the judiciary should atleast treat the people of Jammu & Kashmir at par with the people of Haryana, Bihar, Maharashtra, Kerala or Gujarat. The rights given to the people in these states be bestowed upon us as well. While we, as a nation are boasting that we are a modern civilization and at the same time if we are having a part of the country where the people are still facing this sort of discrimination, isn’t it shameful? Rethink!
(The author is a practising advocate
& a political and legal analyst)
feedbackexcelsior@gmail.com
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