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'Article 370 Has Nothing To Do With Secularism'
'It's an instrument of oppression and discrimination against Indian citizens,' says the leader of opposition in Rajya Sabha, following his party's PM candidate's recent remarks. The CM of J&K joins in, on Twitter
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Narendra Modi’s speech at Jammu invited Omar Abdullah’s response. After a long time, Article 370 is being seriously debated in this country. An ill-informed debate had earlier linked the issue of Article 370 to a secular v/s non-secular debate. Article 370 has nothing to do with secularism. My own study on the subject has revealed a very interesting dimension as to how Article 370 can turn into an instrument of oppression and discrimination against Indian citizens. 

Article 370 is a special provision created only in relation to the state of Jammu & Kashmir. It is a temporary provision. It relates to the distribution of power between the centre and the state. The Central List in relation to Jammu & Kashmir was a small one. Most powers vested in the State Legislature. If any power had to be transferred from the centre to the state, it required the concurrence of the State. Article 370 states as under:- 

370. Temporary provisions with respect to the State of Jammu & Kashmir

(1) Notwithstanding anything in this Constitution,

(a) The provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) The power of Parliament to make laws for the said State shall be limited to

(i) Those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) Such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation :- For the purposes of this article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948;

(c) The provisions of Article 1 and of this article shall apply in relation to that State;

(d) Such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

Pursuant to the provisions of Article 370 (1) (d) the President of India by an order (not legislation) notified the provisions of Article 35A of the Constitution. The provisions of Article 35A read as under:- 

35-A. Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu & Kashmir, and no law hereafter enacted by the Legislature of the State,

(a) Defining the classes. of persons who are or shall be, permanent residents of the State of Jammu & Kashmir; or

(b) Conferring on such permanent residences any special rights and privileges or imposing upon other persons any restrictions as respects:-

(i) Employment under the State Government;

(ii) Acquisition of immovable property in the State;

(iii) Settlement in the State; or

(iv) Right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provisions of this part."

There are thus citizens of India who have not been conferred the status of state subjects. The phrase ‘state subjects’ and ‘permanent residents’ are used interchangeably. Millions of people migrated to India in 1947. Those who settled in other parts of India have all the constitutional guarantees available to them. They are entitled to all fundamental rights available under the Constitution of India to the citizens. The unfortunate ones who migrated to the state of Jammu & Kashmir have been conferred citizenship of India. They can vote in national elections. They can hold property anywhere in India. However, they have not been conferred the status of being state subjects under Article 6 of the Jammu & Kashmir Constitution. Being citizens of India, they are discriminated against. They cannot vote or contest elections of the Assembly, Municipality or Panchayats in the state. They cannot get a job in the state. They cannot acquire property in the state. Their children are not entitled to admission to colleges as state subjects. The bright ones amongst them cannot even get scholarship or any other type of aid from the state. Article 35A of the Constitution of India executively inserted pursuant to Article 370 (1) (d) excludes the provision of ‘this part’ of the Constitution. ‘This part’ of the Constitution refers to ‘Part III.’ 

The effect of this would be that laws inconsistent with fundamental rights would be valid qua these persons. These citizens of India are not entitled to the protection of Article 14 (equality), Article 15 (prohibition of discrimination on basis of religion, caste, race or place of birth), Article 16 (Equality of opportunity in matters of public employment and reservations), the fundamental rights under Article 19 including the right to free speech and the right to life and liberty under Article 21. They are not entitled to the freedom of practice and propagation of religion under Article 25. They are also not entitled to protection of interests available to minorities under Article 29 and 30. The non-State subjects, who are citizens of India, who live in Jammu & Kashmir by virtue of Article 35A, are denied these protections. The pre 2002 position in relation to daughters who marry outside the State that they would lose their right of inheritance is based on the authority to discriminate against citizens of India, between citizens of India and State subjects which Article 35A confers. 

Should a provision like Article 35A which exists only because of Article 370 have place in any civilized society? It is oppressive against citizens of India. It is discriminatory and violative of fundamental rights. Article 35A was inserted in 1954. On a bare reading, it violates the basic structure of the Constitution. I wonder if its constitutional validity will be challenged at some point of time. 

***

Earlier, on December 2, Mr Jailtley had blogged as follows:


The Anti - Daughter position in Jammu & Kashmir -

Yesterday Shri Narendra Modi and Shri Rajnath Singh addressed a huge rally in Jammu & Kashmir.

Jammu & Kashmir’s integration with India is an essential part of the ideology of Bhartiya Jana Sangh and now the BJP.  The BJP believes that Dr. Shyama Prasad Mukherjee’s vision of complete integration of Jammu & Kashmir was the correct vision for India.  

The Nehruvian vision of a separate status has given rise to aspirations for the pre-1953 status, self-rule and even Azadi. The desire of proponents of these three ideas has weakened the constitutional and political relationship between Jammu & Kashmir and the rest of the country. The journey of separate status has been towards separatism and not towards integration. It would be incorrect for anyone to interpret BJP’s challenge for a debate on this issue as a softening of stand on Article 370.

The Anti daughter position in Jammu & Kashmir

The State laws in Jammu & Kashmir were consistently interpreted for over five decades to mean that a daughter in Jammu & Kashmir would lose her status as a permanent resident of the state as also special rights and privileges available to her if she married outside the state. This was based on an erroneous belief that a wife followed the domicile of the husband. A large number of women in Jammu & Kashmir questioned the constitutional validity of this provision. A full bench of the High Court of Jammu & Kashmir by a judgement dated 7th October, 2002 re-interpreted the law and by a majority judgement held that a daughter marrying outside the state would not lose her status as a permanent resident. The National Conference government which was in power in the state was represented in this case by its Advocate General Mr. MA Goni who vehemently opposed the plea of the daughters.

The judgement records:

“Ld. Advocate General, Mr. MA Goni contended that a female descendent of a permanent resident of the state on marriage to a non-permanent resident of the state would lose the status of a permanent resident of the state and would not be permanent resident of the State as defined under section 6 of the State Constitution. He submitted that by marrying a non-permanent resident, a female descendent of a permanent resident of the State will not only lose the property which she may have acquired in the State before marriage as permanent resident of the state but she would also lose all special rights and privileges like employment in the State Government, right to scholarship or any other such privileges as the government may provide. He further submitted that the status of the wife or the widow depends on the status of the husband and in case she ceases to reside in the state and takes permanent residence outside the state she would lose the status acquired by marriage with a permanent resident of the State.”

This was the categorical position of the government of Shri Omar Abdullah’s party, the National Conference. Dissatisfied with this judgement, the National Conference government filed an SLP in the Supreme Court.

In the year 2003, the PDP government in alliance with Congress party was formed in the state. The PDP government followed an alternative strategy. They withdrew the SLP and introduced ‘The Jammu and Kashmir Resident (Disqualification) Bill 2004’, which attempted to statutorily nullify the progressive majority view taken by the High Court. The Bill was enthusiastically supported by the PDP and the National Conference. It sought to withdraw the status of a permanent resident from a daughter who married outside the state. The Bill was passed by the Legislative Assembly.

Shri Atal Bihari Vajpayee, the then Prime Minister in March 2004, suggested that the state government should find a solution to this problem. The PDP and the National Conference linked it to the upholding the special status of the state guaranteed under Article 370 of the Constitution.

After being passed by the legislative assembly, this Bill was taken to the Legislative Council. It ran into some trouble with the Chairman of the Legislative Council adjourning the House without voting and referring it back to the Assembly where it again got stuck. Recently, again moves have been made to re-enact the Bill.

In 2010, a PDP member again introduced this Bill as a Private Member’s Bill in the Legislative Council. Competitive statements have been made by leaders of the National Conference that they are committed to bring this Bill. Special status and Kashmiri identity have been pitted against Women’ rights.

Can the Chief Minister Shri Omar Abdullah ignore a dubious track record of his party on this issue and indulge in discourteous tweets on the subject ?

It must be accepted by one and all that such discriminatory provisions which also compromise on the right to live with dignity have no place in Indian law.

***

The debate on Article 370 has been reignited following Mr Narendra Modi's recent statements, and the chief minister of Jammu and Kashmir, Omar Abdullah responding on Twitter. Mr Salman Soz, of the Congress, also joined issue with Mr Modi. Some of their tweets:

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