Constitutional Lollipops to J&K Cripple Idea of India
The Indian Constitution’s Article 370, Clauses 1 (c) and (d) say that —-
“(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:”
It is the use of provision (d) above which has permitted the Jammu & Kashmir State to drift away from the “rare democracy” which the Indian Constituent Assembly had hoped to give us Indians in 1950. In that process, the many Constitutional concessions gifted to J&K have crippled the idea of India.
It’s important to understand that these “exceptions and modifications” include non-application of certain provisions of the Indian Constitution to J&K.
All of them are set out in the 23-page document called APPENDIX II here. That document is a restatement of all the exceptions and modifications made from the time of Appendix I of October 1954 to 20th June 1964. It lists the 117 (sic) exceptions and modifications of the Constitution of India made applicable to the J&K State.
Appendix II shows that it is the product of a thorough study of all the Articles of the Indian Constitution as well as the ten Schedules, which form a crucial part of it. All the 117 “exceptions and modifications” therein protect the interests of the J&K State. And if you are an academic by nature and have the time, please understand and digest that document. You will agree that Appendix II is a giant-sized lollipop to J&K State, which always trumpets its “special status” even if it harms the interest of the rest of the Indian nation, and, therefore, of the entire nation itself.
Its sheer size permits an analysis only of a few listings in this article. But its gist and purpose are simple: pampering of J&K to paint it as being the apple of India’s eye. Tragically, that apple has today become rotten and poisonous. And to think that our Union government paid Rs.1.14 lakh crore in grants to that “apple of the eye” over the sixteen years from 2000, amounting to more than a quarter of the Central funds disbursed to the 11 special category states in that period.
Before doing the limited analysis of Appendix II, there’s the primary question: Appendix of what? Although included in the Constitution of India as published by the Government of India, there is absolutely no reference to Appendix II in the actual Constitution itself. Same is the case with Appendix I. Even the book on our Constitution by P. M. Bakshi, an ex-member of Law Commission of India did not carry Appendix I or Appendix II.
Further, the President of India is not empowered (under Article 53) to issue an executive order for effecting an “exception or modification” of any existing Article of our Constitution unless it is first approved by the Parliament under Article 368 relating to a constitutional amendment. So, how can the President modify and do so unilaterally just for J&K State? Answer: Article 370 permits it! And the legal eagles will say that whatever is stated in Article 370 is prefixed by the words “Notwithstanding anything in this Constitution.” What they mean is that Article 370 is a standalone creation separate from Article 368 — as it is from every other Article/Schedule in our sacred Constitution.
Now, let’s get down to the ground reality and look at some of the unpalatable aspects in Appendix II.
There are four which are most detestable.
First, there is Part IV A (Fundamental rights), which is not applicable to the J&K State.
Second, there is the introduction of an entirely new Article in our Constitution. Called Article 35A, it has come after the existing Article 35, which directed all the States of India to “give effect to all provisions” relating to Fundamental Rights. But J&K didn’t want to give equal rights to all the people in its State. Hence came the lollipop of Article 35A which, named as
“Saving of laws with respect to permanent residents and their rights” goes on to say—
“Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and 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 and Kashmir; or
(b) conferring on such permanent residents 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 provision of this part.”
The above Article 35AQ is based on J&K’s legacy of the defined concept of “State Subjects” in the 1927 Notification by its Maharaja Hari Singh, which discriminated between the various rights of the various residents of his State. Since this concept could not be retrospectively introduced in the new Indian State of J&K, the cunning Abdullah created Article 35A, and replaced the words “State Subjects” with “Permanent Residents” (PRs) in formulating Section 6 of its own new Constitution of November 1956.
The consequences of Article 35A have been tragic.
Apart from denying the above rights (mentioned in (b) (i) to (iv), to those who do not qualify as “Permanent Residents” (defined in Section 6 of the J&K State Constitution), the non-PRs can vote in the Lok Sabha elections, but not for the State Assembly elections and the panchayat elections. Unbelievably, they cannot contest even a village panchayat seat. For knowing how Valmiki families brought in by the State itself as safai karmacharis from Punjab in 1957, how West Pakistan refugees (80 per cent are Scheduled Caste) and how several thousands of others are being deprived of their social rights which are provided to the State’s PRs, read Sonal Chitalkar article here.
Third, there is that exception-cum-modification in our Constitution’s 42nd amendment, which included the word “Secular” in its Preamble. That word is not applicable to the J&K State! This disregard for “secularism” has been a boon to the Muslim dynasties that have ruled the roost in J&K State, which not only drove out an estimated three lakhs of Hindu Pandits from its territory but have never cared to bring them back. And the Congress party, which always broadcasts its “secular” character has not known to have ever objected to this death of “secular” ideals in J&K. How hypocritical can one get?
Lastly, there is the “modification” that excluded Entry 8 from the Union List (List I) in the Seventh Schedule of the Indian Constitution. This List I, remember, comprises all the subjects on which only the Union of India can make Parliamentary laws for the whole of India. But, with reference to its applicability J&K, that Entry 8 is excluded. And that Entry refers to the Central Bureau of Investigation! The J & K people (rulers?), you see, just don’t want a law which will get the CBI to be involved in the J&K crimes of omission and commission, be it of corruption or murder. “The exclusion of Kashmir” (from CBI’s purview) may possibly have serious consequences for India and Kashmir, ” wrote Adarsh Sen Anand, a former Chief Justice of India, in his book (page 140) titled “The Constitution of India – Its Development & Comments”, Third Edition, 1998.
Yes, the dynasties that have ruled the J&K State for so long just don’t want the real democracy that Dr. Ambedkar wanted to give them and the rest of India. They have always wanted only the lollipops—exclusively for themselves. And Article 370 is the cornucopia, which has done just that as detailed above.
By the way, who was that brilliant person who scripted the partisan and pernicious intricacies of Article 370? Was it Dr. Babasaheb Ambedkar, the architect of the Indian Constitution? Certainly not, if one goes by the interview given to “Organiser” weekly of November 14, 2004, by Balraj Madhok, a veteran political activist of Jammu, who launched the RSS in J&K, and who was a lecturer of History in DAV College of Lahore. In that interview, Madhok says that,
“Nehru sent Abdullah to Dr.Ambedkar to explain to him the position (of J&K) and to draft an appropriate Article for the Constitution. Dr. Ambedkar told me that after hearing Abdullah patiently, he told him, “Mr. Abdullah, you want that India should defend Kashmir, India should develop Kashmir and Kashmiris should have equal rights as the citizens of India, but you don’t want India and any other citizen of India to have any rights in Kashmir. I am the Law minister of India. I cannot betray the interest of my country.”
Nor could Article 370’s author be Jawaharlal Nehru who fully backed the Sheikh’s designs; he did not ever exhibit the brain for crafting that legalese in it. Was it then Nehru’s sycophant, Gopalaswami Ayyangar, the bureaucrat groomed under the brilliant Indian Civil Service (ICS) cadre of the wily British rulers? Some historian must peep into that scripting and tell us.
Meanwhile, here’s hoping that with Mehbooba Sahiba –finally shedding her sheep’s clothing and a mother’s deep concern for a young terrorist named Bhuran Wani– the rest of India will show that they and her likes can no longer have supper on a “separatist” table. And if all she is pining for is a fiefdom for a Begum, she should quickly forget that dream. And learn, instead, to live with a real, vibrant democracy called India.
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Arvind Lavakere has been a freelance writer since 1957. He has written and spoken on sports on radio and TV. He currently writes on political issues regularly. His writings include a book on Article 370 of the Indian Constitution.