Rajan Gandhi
General election of 2014 infused enthusiasm in Jammu’s public, massive turnout at Modi’s rally was such as if it’s going to be an independence rally for Jammu. BJP reaped the dividends claiming three parliamentary seats with even former CM of state Gulam Nabi Azaad, one of the tallest leaders of Congress, tasting humiliating defeat. After few months state elections were held and again BJP tasted victory by winning dream 25 seats, second only to 28 of PDP. Jammuites got the shocker of lifetime when BJP stitched the alliance with PDP, with coalition to work according to agenda of alliance in which all issues like Article 370, 35A and delimitation of assembly constituencies were kept in abeyance.
To speak frankly, BJP lost the battle that very day and after that for three years mandate of Jammu was humiliated day in day out with BJP points man for J&K Ram Madhav parroting all is well- all is well, HM Rajnath Singh doing ‘ninda-kadi ninda-ghor ninda’ and nothing else, army got its hands tied and valley on the boil for all these years, nothing gained but all lost. Such was the scenario that despite eighty thousand package by PM Modi no development project could be undertaken even to the level of stone laying leave alone inauguration.
Practically speaking BJP wasted five years of its tenure with promises never to be kept except jingoism which has no face value right now. Four important issues have been haunting Jammu since independence, much expectations were from BJP who always have patriotic posturing and even Dr. Shyama Prasad Mukherjee sacrificed his life for ‘One Nation One Constitution One National Anthem and One National Flag’ but all parties have let down Jammu including BJP. Firstly Article 370, the state of Jammu and Kashmir’s original accession, like all other princely states, was on three matters: defence, foreign affairs and communications. Most states were unable to set up assemblies in time as such the States Department developed a model constitution for the states, in May 1949, the rulers and chief ministers of all the states met and agreed that separate constitutions for the states were not necessary which meant that the subjects available for legislation by the central and state governments were uniform across India. In the case of Jammu and Kashmir, the representatives to the Constituent Assembly requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State. Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State’s constituent assembly.
This was a “temporary provision” in that its applicability was intended to last till the formulation and adoption of the State’s constitution. However, the State’s constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370. Validity of Article 370 is pending in SC for which litigation is still going on and on. BJP government has shown no inclination to scrap or challenge Article 370.
Second controversial issue is Article 35A, incorporated by an order of President in 1954 on the advice of the Nehru Cabinet but Parliament was not consulted. Article 368 of the Constitution mandates that only the Parliament can amend the Constitution but Article 35A gives our State Legislature a carte blanche to decide the ‘permanent residents’ of the State and grant them special rights and privileges in State public sector jobs, acquisition of property within the State, scholarships and other public aid and welfare programmes.
The provision mandates that no act of the State legislature coming under the ambit of Article 35A can be challenged for violating the Indian Constitution or any other law of the land. But the fact is 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 normalcy in Jammu and Kashmir and strengthen democracy in that State.
The Constitution makers did not intend Article 370 to be a tool to bring permanent amendments like Article 35A, in the Constitution which is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens” which in turn is a violation of fundamental rights under Articles 14, 19 and 21 of the Indian Constitution. The Article has been discriminatory among its own population, hence has come under questioning. A resident woman marrying outside the state is no longer considered a permanent resident, thus she and her children lose their status. The same is not applicable to male members, who may marry outside the state. Further, residents of the state since Independence, having migrated from Pakistan, are non-residents, while those who immigrated to Pakistan are. Issue is pending before SC.
The third controversial issue is Jammu and Kashmir Resettlement Act of 1982, introduced on 8th March, 1980, the J&K Resettlement bill became a law in April 1982 when both house of the state legislative assembly passed it. The then governor B K Nehru returned the bill on September 18, 1982 seeking “reconsideration” but the houses passed it again without any change on 4th October, 1982.
Though governor gave his mandatory ascent to the bill on October 6th, 1982, the piece of legislation had already been sent on September 30th, 1982 for a Presidential Reference to the apex court seeking opinion “as to whether the bill or any of the provision thereof, if enacted, would be constitutionally invalid”. After 19 years, a 5-member constitutional bench returned the bill unanswered on November 8, 2001. As the state government was in the process of setting up an authority for implementation of the law, another PIL was filed before the SC on which a stay was issued. Interestingly no one from Pakistan has come till date with an application to settle in J&K but still Kashmir centric parties want to implement it and court is keeping it pending since 2001.
Mother solution to all these issues is Delimitation Commission to remove the regional disparity long suffered by Jammu province and also provides representation to all reserved categories in the State Assembly. It is pertinent to note here that the Constitution of Jammu & Kashmir, enacted in 1957, was based on the Maharaja’s Constitution of Jammu & Kashmir of 1939, which was still in force. After accession to India, the State Constituent Assembly was constituted under the 1939 Constitution, but Sheikh Abdullah’s administration arbitrarily carved out 30 seats for Jammu region and 43 seats for Kashmir region and two seats for Ladakh region. This regional disparity became entrenched thereafter: Kashmir (46), Jammu (37) and Ladakh (4).The last delimitation exercise in the State took place under challenging circumstances and was finally accomplished by the retired Justice KK Gupta Commission in 1995, when the State was under President’s rule. As the Constitution provides for delimitation every 10 years, the next delimitation of Assembly constituencies should have taken place in 2005. However, in 2002, the NC Government froze delimitation until 2026 by amending the Jammu & Kashmir Representation of the People Act 1957 and Section 47(3) of the Constitution of Jammu & Kashmir. The amended Section 47(3) provided “that until the relevant figures for the first census taken after the year 2026 have been published. This means the next delimitation can only take place after Census 2031, unless the Governor intervenes and rectifies this irregularity. It is pertinent that owing to the disturbed conditions in the Kashmir region from 1990 onwards, there has been a huge migration towards Jammu province, an exodus not limited to the Kashmiri Pandits. The concomitant rise in the population of Jammu does not reflect in Census 2011, which lacks credibility among large sections of the people. SC dismissed the appeal, stating that Article 327 of the Constitution empowers Parliament to make laws regarding delimitation of constituencies, and Article 329A states that any law relating to delimitation of constituencies or allotment of seats to such constituencies “shall not be called in question in any Court”.
All these four issues point only towards one thing, Kashmir centric political parties in active connivance with Central Governments repeatedly discriminated Jammu and all parties be it Congress or BJP remained just mute spectators and present government is no exception with repeated requests for adjournments on the pretext that on these things only popular government can take stance which amounts to criminal neglect with people of Jammu as no Kashmir centric party will ever take a favorable stance as far as Jammu is concerned though demographic changes are happening only in Jammu Division be it migration or Kashmiris settling in outskirt colonies.
This regional imbalance can be rectified through delimitation of assembly seats and with the resultant ratification of all three issues through J and K assembly only but till date no party has dared to challenge Kashmir hegemony in practice who indulge in strikes, threatens to declare azadi or indulge in armed insurgency.
Will the people of Jammu still believe in BJP or the honeymoon is over only election results will reveal the truth, till that time Jammuites are left with no option but to lick their wounds of seventy one years and keep searching for a party who can listen to patriotic voice one day. But one thing all parties have to keep in mind, during 2008 agitation Jammu got united and was ultimately victorious so don’t push Jammu to that situation once again.
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