State centric concerns

…J&K is not the only state with safeguards

Dr. Javid Iqbal
Srinagar, Publish Date: Aug 18 2017 11:47PM | Updated Date: Aug 18 2017 11:47PM
State centric concernsRepresentational Pic

JK State has a special history, with India and Pakistan claiming the erstwhile state as it existed in 1947. Notwithstanding the known fact, within the Indian ream, JK is not the only state with constitutional safeguards. There are other states in India with safeguards protecting their distinct cultural features. The fact is overlooked, while much is made of constitutional safeguards JK State is endowed with. Unfortunately the contested political status of JK State remains deeply embedded in national psyche. It leads to widespread propagation that Kashmir in tone and tenor ought to be just like any other state of India. And, to make it like any other state remains the national concern. This has resulted in watering down constitutional safeguards that JK was originally armed with to protect its distinct features.  What remains is constantly under attack. On the contrary, other states bask in the safeguards provided without a whimper from any quarter.

Take Article 35 A, presently in headlines and a matter of concern across the state. The article reserves the right of acquisition of immovable property in the State and settlement in JK state to permanent residents, as defined by law. Article 371 A of the Indian constitution, which applies to Nagaland in its Clause (1) (a) (iv) states: Notwithstanding anything in this constitution, no Article of Parliament in respect of ownership of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides. Article 371 G (a) (iv)  applies to Mizoram, it states: Notwithstanding anything in this constitution no Article of Parliament in respect of  ownership of land and its resources, shall apply to the State of Mizoram unless the Legislative Assembly of Mizoram by a resolution so decides. Not a word has been heard regarding exclusive rights of Nagas and Mizos, while rights of JK State Subjects continue to hit headlines.

The kingpins of present ruling elite have no objection to Nagas and Mizos retaining their rights, their cultural moorings. On the contrary, the constitutional guarantees provided to people of JK State are taken as an affront. In a Facebook post on December, the 4th 2013, Arun Jaitley notes;  “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.’’ Thanks to partisan concerns of Arun Jaitley and his ilk, its constitutional validity has been challenged; the challenges heightened when BJP took over reins of power in 2014. The question arises—why not also consider the constitutional guarantees provided to Nagaland and Mizoram an affront to Indian citizens?

If the legislature of JK State retains powers of legislation, where parliament may not supervene, why is it taken as an affront, while no exception is taken to the legislature of Nagaland and Mizoram exercising similar powers? Nagas and Mizos might be taken as an exception—people with distinct cultural traits, how about Himachal Pradesh protecting its turf? To protect its agricultural land, no non-Himachal resident can buy agricultural land in Himachal Pradesh. In acquiring urban land, stringent conditions apply for non-Himachal residents. Whatever these conditions imply, the point to note that a Himachal resident and non-Himachal resident is taken on a different plane, however, it is neither taken as discrimination or an affront to Indian citizens. It does not touch the raw nerve of Arun Jaitley or his ilk.     

We may refer yet again to Article 35 A, where the right to employment is reserved to permanent residents of JK State, as by law defined. Yet again, this right is not confined and exclusive to people of JK State. As per Article 371 D clause (1): The President may by order made with respect to the State of Andhra Pradesh provide, having regard to the requirements of the State as a whole, for equitable opportunities and facilities for the people belonging to different parts of the State, in the matter of public employment and in the matter of education, and different provisions may be made for various parts of the State. This was applied to Telangana region, which subsequently became a separate state. It states: Telangana region has a provision of local cadres for reservation in direct recruitment and admission to educational institutions and setting up of an administrative tribunal. This has obviously been done to cater to domicile requirement, ‘sons of soil’ policy in education and employment. 

JK State did have many constitutional provisions safeguarding the distinct political and cultural identity, in fact a separate constituent assembly to frame its own constitution. As per terms of accession to Union of India, the state originally ceded control in terms of framing laws for matters pertaining to foreign affairs, defence and communication to Indian Parliament. Subsequently, there has been watering down of many safeguards over decades, which has resulted in lot of heartburn and alienation. It has been resisted, with the resistance having many a stratum. Pending resolution of ‘K’ conflict, it would be prudent to hold the line without stoking fresh constitutional controversies.   

Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]

(Author is doctor in medicine, a social activist, and a senior columnist)