Don't Overlook Article 35A as J&K's Chicken-or-Egg First Riddle
NOVEMBER 03, 2017
By Naresh Minocha, Consulting Editor
"I am neither a Hindu, nor a Muslim nor any other, except that I am a man, a man with, common sense. As a man of common-sense, after perusing these agreements, what has been perplexing me is this whether Kashmir has acceded to India or India has acceded to Kashmir".
That was late Surendra Mahanty participating in a Jammu & Kashmir (J&K) debate in Rajya Sabha on 5th August 1952. He described handling of Kashmir as "a story of bungling, a story of muddled-thinking". Mahanty added: "I will not go into it, nor will I invoke the name of Mahatma Gandhi, the Father of the Nation, for defending, the indefensible."
What perplexed Dr. Mahanty baffles more the man in the street as the saga has become extremely messy & bloody since then. The Might and Pride of India has been compromised by successively regimes that lack the political spine to call spade a spade – Kashmir problem is nothing but demographic blackmail of the rest of India.
And Modi Government has proved that it also lacks the spine by reviving the rotten idea of interlocution. It has used planned peace talks as an excuse to delay in hearing of the case against Article 35A, which is indefensible if we go by Parliament records.
The other day Attorney General (AG) K K Venugopal urged the Supreme Court to defer hearing on validity of Article 35A of the Constitution by six months. The rationale for deferment is dubious: Hearing would disturb talks by newly appointed interlocutor, Dineshwar Sharma, ex-chief Intelligence Bureau, with stakeholders of J&K peace. The Apex Court deferred the hearing by three months on this issue earlier dubbed by AG as "a very sensitive" matter.
In the first place, this case would not have come up had Nehru Government sought AG's opinion before sneaking in Article 35A in the Constitution through a presidential order issued in May 1954 under Article 370, the constitutional mother of Kashmir problem.
Second, successive Governments have shunned Nehru Government's belatedly-realized intent to jettison Article 370, which is like a cancer against national unity.
Third, the history needs be rewritten keeping in view the Prime Minister Narendra Modi's latest contention that certain previous regimes diluted the contribution of Sardar Vallabhbhai Patel, Deputy Prime Minister, in uniting princely States into one - India, that is Bharat.
A crucial truth buried in history is that Prime Minister Jawaharlal Nehru not only distanced himself from birth of Article 370 but also sought to put the blame Mr. Patel & others directly or indirectly connected with drafting of Indian Constitution.
Before elaborating these three issues, revert back to time-pass game of so-called talks with all stakeholders. Four Interlocutors have come and gone over the last 17 years. They didn't make an iota of difference to Islamic radicalism-aided terrorism & separatism in J&K.
The earlier interlocutors were late K.C. Pant (2001), an ex-union minister; N.N. Vohra, (2003) presently J&K Governor; Track-II team headed by eminent jurist, Ram Jethmalani (2002-03) and a group headed by Dileep Padgaonkar, a senior journalist (2010-12).
Peace talks have been going for several decades without any change of heart in Radicalized Muslims-dominated Kashmir. Unlimited development packages and projects have had no impact on Kashmiri Muslims.
The State's two other regions: Jammu & Kashmir, where Muslims are not in majority, have been peaceful. This shows that separatism is nothing but a Pakistan-backed demographic problem that was elaborated in this column during September 2016 Resolve Kashmir issue by crediting Sher-I-Kashmir's Nov 1951 speech - Violence outshines Kashmiriyat .
Prospects of change in the hearts of citizens of Kashmir would remain bleak as long as Pakistan exists. Kashmiri Muslims now love to behave like frogs in the well. They can't see the blood, sweat and money that rest of India has spent to guard and nurture Kashmir, which has been for centuries brutalized by foreign Muslim invaders, a fact recorded even in the debates of J&K Constituent Assembly.
Kashmir, the demographic Time Bomb and Article 35A have morphed into a chicken-or-egg first enigma due to Government's indecisiveness & ham-handedness since the fifties.
If the Government scrap Article 35A, blackmailing Kashmir Muslims are likely to resort to full-blooded bloodbath. Separatists have had the audacity to warn Supreme Court to not give a verdict against Article 35A. If the Government retains the Article, it would embolden radicalized Muslims to accelerate changes in the composition of the population peace-loving Jammu and Ladakh into their favour.
Article 35A debars Indians, who are not permanent residents of J&K, from acquiring property or from getting employment in State Government. The ground for inclusion of this highly discriminatory provision against Indians who are not permanent residents of J&K was created by Delhi Agreement arrived at by Mr. Nehru and State's Prime Minister Sheikh Mohammad Abdullah, in July 1952 by taking certain decisions to elaborate and consolidate special status of J&K under Article 370.
This Article was incorporated in the Constitution under Part XXI.-Temporary, Transitional and Special Provisions as J&K wanted to enjoy autonomy in conduct of its affairs excluding defence, communications and foreign affairs.
Participating in two debates on Kashmir in Parliament during August 1952, Nehru absolved himself of any responsibility in granting special status to J&K via Article 370. He had, however, no inhibition in misusing the same Article to pamper Kashmiris.
On 5th August, Mr. Nehru told Rajya Sabha: "As a matter of fact, when this article 370 took shape here, as far as I can remember, I was out of the country for a long time-I had gone to America. So I was hardly conscious for a long time afterwards of this article 370 because I was not here. That has been the position".
On 7th August, He stated in Lok Sabha: "I would beg the House to remember that we have to proceed on a certain basis, a basis it so happens - I am not excusing myself but it so happens-a basis which was made in my absence from India. (I was in the Americas at the time) and laid by that stout builder of this nation, Sardar Patel".
PM continued: "At that time when this new Constitution - I have said this before but I repeat it- was being finalised, when the question of Kashmir came up, it was dealt with in article 370 of the Constitution".
Mr. Nehru also had a dig at Mr. Patel in the same house during June 1952, implying laxity in negotiating J&K accession to India.
He stated: "So when the hon. member referred to that process of accession which went on a large scale in July and early August, through the great wisdom and courage of Sardar Patel, three States were left out -- two major ones and a minor one -: the major ones being Hyderabad and Kashmir: Hyderabad for different reasons, and kashmir for different reasons. This was done deliberately, and our advice to the Kashmir people and the Maharaja so long as he was there was: ‘Do not hurry. It is a difficult problem. Do it soundly and well, and we shall abide by the decision of the people of Kashmir'. That is the policy that Sardar and our Government laid down in regard to every State in India".
Mr. Nehru's repeated attempt to distance himself from birth of Article 370 was perhaps due to realization that it discriminated against other States and weakened India's fragile unity.
Replying to a question in Parliament during December 1963, Mr Nehru stated: "Since this Article was incorporated in the Constitution, many changes have been made which bring the State of Jammu and Kashmir in line with the rest of India. The State is fully integrated to the Union of India. "Government are of opinion that they should not take any initiative now for the complete repeal of Article 370. This will, no doubt, be brought about by gradual changes in consultation with the Government and the Legislative Assembly of Jammu and Kashmir State".
Nehru Government's intent to scrap Article 370 was articulated by late M.C. Chagla Education Minister in Rajya Sabha during February 1964.
Mr Chagla stated: "The Prime Minister (Nehru) the other day spoke of the gradual erosion of Article 370 of the Constitution. I only hope that the erosion is accelerated and I also hope that very soon this Article will disappear from the Constitution of India. After all, it is an Article which is transitional and temporary. I think the transitional period has been long enough."
After Nehru's demise in May 1964, the intent was put on the backburner. Replying to debate on Private Member's Bill to abrogate Article 370 of the Constitution in Rajya Sabha during December 1964, late Gulzarilal Nanda, Union Home Minister said: "Article 370 is neither a wall nor a mountain, but it is a tunnel (reference to Banihal tunnel). It is through this tunnel that a good deal of traffic has already passed and more will".
Even BJP has developed cold feet on abrogation of this Article. In its Manifesto for 1998 Lok Sabha polls, it thundered: "The BJP will abrogate Article 370 of the Constitution."
The Party's manifesto for 2014 Lok Sabha polls stated: "BJP reiterates its stand on the Article 370, and will discuss this with all stakeholders and remains committed to the abrogation of this article".
Asked whether Modi Government intends to either amend or remove article 370, the Government told Lok Sabha during March 2017 that "At present, there is no such proposal under consideration of the Government".
Such backtracking has emboldened Kashmir Muslims to complete reversion to pre-1952 situation that, among other things, provided for designation of Chief Minister as Prime Minister and election of Governor by State Assembly.
As for Article 35A, the basis for this provision was justified by Mr Nehru in Parliament shortly after signing of 1952 Delhi Agreement.
On 5th August, He stated in Rajya Sabha: "They (Kashmiris) are afraid that people from India or elsewhere, rich people and others, might come and buy up property there, and thereby gradually all kinds of vested interests would grow up in property in Kashmir on behalf of people from outside So far as we were concerned, we thought that this was only the existing law there, and the existing law prevails under article 370 of the Constitution, which I have just read".
Principal Devaprasad Ghosh ridiculed Nehru. Mr Ghosh stated: "What distresses everyone in this House and every nationalist of India, who loves his motherland, is the manner in which this agreement has been brought about. Those days in October, 1947-not even five years ago-seem to be far off distant: days-those days in which the Head of that State with his Chief Minister or Prime Minister Sheikh Abdullah, came as suppliants to Delhi asking for protection and India gave that protection very nobly and generously, at great trouble and expense to herself".
Mr. Ghosh is right because Mr. Nehru was now protecting Kashmiris from their brothers and sisters residing in the rest of India.
He thus unsuccessfully moved a motion against the Delhi Agreement. The defeated resolution read as: "And having considered the situation in regard to the State of Jammu and Kashmir, the Council resolves that the reported terms of Agreement between the Prime Minister of India and the Prime Minister of the State of Jammu and Kashmir involve special treatment and discrimination in favour of the inhabitants of a particular State and therefore requests the Government of India to take steps to get Kashmir to accede to India completely in respect of all subjects without delay".
Another MP, Kartar Singh, observed: "there are certain things in the agreement which offend against the Constitution....The first point is regarding land reforms....Then we come to the second point, about citizenship rights....It is not only on acquisition of immovable property that there is restriction; there is also the limitation on employment of non-Kashmiris. Non-Kashmiris cannot be taken into service of the State. This also offends against the Constitution...."
On the issue of property acquisition ban, Mr Singh pointed out that "The Punjab Land Alienation Act already on the Statute Book for the last many years restricting the purchase of agricultural land by non-agriculturists, was referred to the Attorney General for his opinion whether it was a reasonable restriction or not, and his opinion was that that restriction was not a reasonable one and that it offended against the provisions of the Constitution of India and that Act was annulled and repealed probably by a decree of the President".
He suggested that Government might consult the Attorney General on this point in the agreement, "as the opinion of the Attorney General in regard to the Punjab land Alienation Act was already there that it was not a reasonable restriction".
Nehru Government obviously did not see any parallel between Punjab and J&K. It thus incorporated Article 35A in the Constitution through a Presidential Order the Constitution (Application to Jammu and Kashmir) Order, 1954.
Had this blunder not been committed, Kashmiri Muslims would perhaps have been saved from radicalization. They would have got a chance to live along with enlightened Muslims and other Indians from all walks of life in the Kashmir valley. And together they would have transformed Kashmir into global hotspot for tourism, modern horticulture and information technology-enabled industries.
Section 35A should thus be repealed both in the interest of J&K and rest of India. This is another test case for the Judiciary's mettle. The Executive and the Legislature have already licked dust on this socio-economic reform front.