Articles 370 & 35A stay or not, J&K stays in India

K B Jandial
The present unprecedented political slugfest on contentious Articles 370 and Art 35A has crossed all redlines with Mehbooba Mufti threatening to secede the day these Articles are abrogated or even tinkered with. It is common with Mehbooba after BJP’s withdrawalfrom North-Pole-South-Pole alliance Govt, to lash out at Modi, BJP and even Delhi on one count or the other. She has been warning that there would be no one in J&K(includes Jammu & Ladakh also) to give shoulder (kandda) to Tricolour if special status is touched, forgetting that J&K is not any Kashmiri leader’s fiefdom. Moreover,kandda is given to a deceased and our National flag can never die, even in Kashmir, because it represents sentiments and aspirations of billions of proud Indians who, if the time comes, would not hesitate to lay down their lives to keep it aloft majestically.
The new born love for Pakistan& Imran Khan and secessionism by the mainstream parties may require kandda for them in the event of Kashmir seceding from India as the present cadre of armed militants would rule the roost and make all these mainstream politicians accountable as happened in some of the Islamic countries where Rulers were pulled down by the rebellion. And please don’t count Jammu and Ladakh for this misadventure as the people are emotionally connected with the Tricolour.
This slugfest started with Omar Abdullah’s tweet of J&K to have a Prime Minister if they come to power which started no-holds-barred attacks and counter attacks in which surprisingly Gh Nabi Azad too joined supporting the views of separate Kashmir PM. He forgot that it was Congress Govt(GM Sadiq) in 1964 that changed the nomenclature from PM to CM and extended many provisions of Indian Constitution under Presidential order and intriguingly Congress is now supporting the move to revert back these amendments.
Its election time competitive India–bashing has beenonly agenda in Kashmir but what Dr. Farooq Abdullahsaid in Srinagar’s election meeting on 9th April, 2019, was unprecedented for mainstream politicians. He has linked Article 370 with plebiscite. Heis quoted having said, “Plebiscite (UN’s dead resolution of 1949) is temporary, yes it is, but till you do not go for it, Article 370 is permanent”.So, he means that Article 370 is permanent till the right to self-determination is not franchised. Like his son, Omar Abdullah,he too held accession as “conditional”. Hesaid what Kashmir politicians keep saying mischievously that the accession with India is only on three subjects but now he is changing this narrative too, “The accession was done on three subjects and all other things were kept with the people of the State till plebiscite is not done”. Such irresponsible and patently wrong assertion has been made by State’s ‘four time ruler’ which no mainstream politicianshad ever made since Sheikh Abdullah rejoined the mainstream politics in Feb 1975 after remaining in political wilderness for 22 years. The separatists had been saying so besides Pakistan.
The fact remains that Maharaja Hari Singh alone was competent to accede to either of the Dominions under India Independence Act, 1947 and Govt of India Act, 1935which he did on 26 October, 1947 with India. It is full, complete, final and irrevocable. J&K Constituent Assemblyratified the accession and the State Constitution in un-amendable Section 3 provides for “integral part” of India. After promulgation of Constitution of India, signed by four representatives of J&K too, the relevance of all Instruments of Accession signed by 562 rulers of Princely States including J&Kbecame redundant.
Apart from article 370, Article 1 of Constitution of India which is originally extended to J&K on 26 January 1950, says that”(1) India, that is Bharat, shall be a Union of States. (2) The States and the territories thereof shall be as specified in the First Schedule (J&K figures at Sr. No.15 out 28 States). (3) The territory of India shall comprise (a) The territory of the States; ….” So, in no case, J&K can secede or the integral part be snatched away from India by the likes of Mehbooba & Abdullahs. Dr.Farooq is talking about Plebiscite which his illustrious father Sheikh Abdullah had buried forever 44 years ago.
In election season throwing mud on each other has been the unfortunate bane of our parliamentary democracy but threat of secession and seeking plebiscite by the contesting candidates, whatever provocation may be, cannot be taken as normal. It goes against the very oath of the Constitutions of India& J&K taken by the candidates at the time of filing nomination papers for the election to Lok Sabha and Assembly.NC’s Baramulla candidate and former Speaker took the refuge of “Pakistan Zindabad” to get votes. Is this the only strategy available to Kashmiri leaders to win elections?
While the Indian nation is fully aware of the divergent stand of different political parties on Articles 370 & 35A since their inception and its reiteration at election time to hoodwink voters is nothing new. Can all this be dismissed as mere poll gimmicks on all sides including BJP? Open threat of secession and plebiscite by former rulers (would be next rulers as well) is unacceptable at least in Jammu, Ladakh and elsewhere in the country. Should Jammu & Ladakh remain silent on it?
Have these mainstream leaders forgotten that even Pakistan with her proxies in Kashmir and armed terrorists could not move even an inch in taking Kashmir out of India in last 72 years including 30 years of terrorism & bloodshed?No one can forget that when the full blown terrorism erupted in January 1990 Dr. Farooq Abdullah reportedly asked the rebel youths to go across the border, take armed training and return to fight India. Whether he said it with conviction (doubtful) or out of frustration coupled with anger against the then Home Minister Mufti Mohd Sayeed who is credited to reappoint Jagmohan against Farooq’s advice, the boys who went there and came back with arms and ammunition only caused avoidable mayhems and destruction in J&K and in the process got eliminated also. Did anyone including Dr. Farooq or Syed Ali Shah Geelani gainin these 30 years?
Today, when former CMs and other leaders are talking about secession and ‘annulment ofaccession’ (there is no constitutional provision to secede) it could only lead to more mayhems and destruction of Kashmirand not to bring Kashmir closer to Azadi. Let them try to reconnect with estranged people by joining the separatist movement openly, but stop talking on behalf of Jammu and Ladakh as people of these regions condemn separatists.
Mehbooba Mufti’s open threat of secession in 2020 if J&K’s special status is tinkered with is obviously in reaction to Amit Shah’s statement to scrap these Articles by then. She also talked about that if these Articles are scrapped India would be seen as “occupational force” in Kashmir. If these ‘ifs’ and ‘buts’ are removed, there doesn’t seem to have much difference between these ‘former rulers’ and Geelani and his likes and Pakistan.
Contentious Articles 370 and 35A are before the SC for over four years in SC with both J&K Govt and Central Govt seeking adjournment after adjournment as they know their sensitivityin Kashmir. Has the situation in Kashmir transformed to the extent that necessitatedAmit Shah and PM Modi to commit scrapping of these articles? This too appears to be election stunt.
There are three legal issues in Article 35A. Can the President of India bypass Parliament’s amending power of Article 368? Can the President add a new Article by exercising the delegated powersunder Article 370and lastly, does it violate “the basic structure” of the Constitution?
Article 35A doesn’t give special entitlement to the permanent residents to exclusion of other citizens of India but provides the constitutional safeguard to the State’s discriminatory Permanent Resident Law against being declared ultra-virus by the courts. The Constitution (Application to Jammu & Kashmir) Order 1954 that extended many provisions of the Constitution and entries of schedules to J&K, inter alia, added a new article in the Constitution of India below Article35. The Permanent Resident provisions in J&K Constitution (Section6 to 9) have no parallel in the country and any attempt to point out its similarity with any of the laws in H P, North East States or any other State only expose their poor knowledge of the Constitution and laws.
In most of the debates, Himachal Pradesh is specifically referred to by the protagonist of Article 35A, but there is no law that debars any Indian Citizen to own and settle anywhere in the State. Himachal Pradesh has a law called H. P. Tenancy and Land Reforms Act, 1972 whose Section 118 is misinterpreted to claim that outsiders cannot buy land or property. This section only imposes “restriction on transfer of land in favour of a person who is not an agriculturist of the State”. This Section even allows non-agriculturist of the State or outsider to buy even agricultural land, but only with the permission of the State Government. There is no bar on sale and purchase of built up property like multi-story flats which are owned by many outsiders (my non-Himachali relatives have flats in Shimla). Even in North East and other States including Andhra Pradesh, Goa, the provisions under Article 371-A to 371-I of Constitution of India protect tribal land, property, culture, languages, social practices, customary law etc. It is only in Sikkim which joined the Union of India in 1975, Maharaja’ Regulation of 12 October, 1962 that imposed restrictions on transfer of property to non-Sikkimese, continues even today. Apparently, it was to protect rights of tribal that originally constituted the population.
Article 370 is the basis of all Presidential orders including of Article 35A which empowers the President to extend the provisions of the Constitution of India to J&K with the concurrence of the state Govt. Invoking this power, 94 out of 97 entries of Union list stood extended to J&K whileoriginally only Articles 1 and 370 were applied to J&K.
Strange are the ways of the politics of self-seeking Kashmiri leadership whichwas responsible for Maharaja Hari Singh’s forced exileand today is praising him as a visionary in the context of PRC laws. Admittedly, this law has roots in Maharaja’s notification no. 1-L/84 of 20th April 1927 and Article 35-A is the outcome of Delhi Agreement reached between PM Jawaharlal Nehru and J&K PM Sheikh Abdullah in July 1952. But the same leadership willfully dropped an important Class III of State Subjects of 1927 notification which had given power to grant permission to acquire non-movable property with under a “rayatnama” or under an “ijazatnama”to a non-State Subject who “may execute a rayatnama after ten years of continuous residence therein.” Had it been incorporated in State Constitution or amended these Sections reflecting the true spirit of the Maharaja, the human issue of West Pakistani refugees and Valmikis would have been addressed long back. But was Kashmiri leadership ever interested in resolving minority communities’ issues?

Straight Talk

It is the same Mehbooba whoin her first public address at Anantnag Railway station after becoming the CM had said that Kashmir’s accession with India was the best thingever happened to Kashmiri Muslims and referred to the violence hit Islamic Pakistan. Today, shein a tweet ridiculed India by quoting a verse of Iqbal out of context, “Na samjhoge to mit jaogeai hindostan walo, tumahari dastan tak bhi na hogi dastanun mein”. But she conveniently ignored Iqbal’s famous song in which the celebrated poet had said, ” Yunaan, Missar-e-Roma sab mit gay jehan se, baqi raha sirf namo nishaan hamara; Kuch baat hai ki hasti mitti nahi hamari, sadion raha hai dushman jaman hamara, sarejahan se achha hindostan hamara”. This is our India, Mehbooba ji.