By P.K.Balachandran/Daily Express
Some Indian States are struggling to preserve their identities in the face migrations from outside and the centralizing tendency of the Indian/Hindu nationalistic powers-that-be at the Center in New Delhi.
Currently, there are problems in Kashmir over the Central government’s move to repeal Art 35A of the constitution which gives India’s only Muslim-majority State the right to define the exclusive privileges of locals vis-à-vis outsiders.
There has, in fact, been a long drawn out struggle in Kashmir to preserve the special privileges granted to it by the Indian constitution.
Art 35 (A) and Art 370 of the Indian constitution are meant to preserve Kashmir’s identity. But Art 370, which gives the broad framework for Kashmir’s autonomy, has undergone continuous erosion over the years. There is now a move to repeal both Art 370 and Art 35A.
It is no secret that the BJP ruling the Center, wants to abolish Art. 370 it altogether and integrate Kashmir with India completely. The latest move is to repeal Art 35A which gives the Kashmir government the right to designate a section of the population as “Permanent Residents” and others as “Non-Permanent Residents.”
Art 35A provides that the Permanent Residents will continue to enjoy special rights and privileges in the matter of (1) Employment under the State (2) Acquisition of immovable property in the State (3) Settlement in the State (4) Scholarship and aid as the State Government may provide.
Additionally, any law which gives these special rights and privileges to the Permanent Residents of the State cannot be declared null and void by any Court on any grounds.
However, Art. 35A has been challenged in the Indian Supreme Court on the grounds that it violates the fundamental right of equality before Law. It is also pointed out that Art 35A was put into the constitution without going through parliament. It had come under the rubric of Art 370 which had broadly defined Kashmir’s constitutional relations with India after the accession of the Muslim-majority Princely State to independent India in 1947.
The inability of non-Kashmiris to settle down and own property in Kashmir has irked Indian nationalists for a long time. The discomfort with this increased with the advent of the militant separatist movement in the Kashmir Valley since the late 1980s.
One of the solutions to the Kashmir issue is thought to be the settlement of non-Kashmiris there in the belief that mixed colonies will help people cross boundaries more easily and blunt separatist tendencies. This is the reason for the current moves to repeal Art 35A.
But for the Kashmiris, Art 35A is the very soul of Art 370 and the pledge of autonomy given by top Indian leaders like Pandit Nehru at the time of Kashmir’s accession to India.
Angered by the move to repeal Art 35A, former Jammu and Kashmir Chief Minister Mehbooba Mufti warned: “Those frothing at the mouth & calling for its removal shouldn’t blame Kashmiris for the developments that will follow such a hare-brained decision.”
Historian Srinath Raghavan of the Center for Policy Research, justifies the Kashmiris’ stand on Art.35A. In an article in Hindustan Times, Raghavan points out that the Instrument of Accession signed by the Maharaja of Kashmir in October 1947 after the British left, specified only three subjects for accession: Foreign Affairs, Defense and Communications.
In July 1949, Kashmiri leader Sheikh Abdullah and three colleagues joined the Indian Constituent Assembly and negotiated, over the next five months, the future relationship of Kashmir with India.
This led to the adoption of Article 370, which restricted the Indian Union’s legislative power over Kashmir to the three subjects mentioned in the Instrument of Accession.
However, to extend other provisions of the Indian Constitution to Kashmir, the Union government would have to issue a “Presidential Order” to which the Kashmir State government’s “prior concurrence” was necessary, Raghavan points out.
“Further, this concurrence would have to be upheld by the constituent assembly of Kashmir, so that the provisions would be reflected in the State’s constitution. This implied that once Kashmir’s constituent assembly had framed the state’s constitution and had dissolved itself, there could be no further extension of the Union’s legislative power. This was the core of Jammu & Kashmir’s autonomy,” he asserts.
“In another set of negotiations in 1952 between New Delhi and Srinagar, several other provisions of the Indian constitution were extended to Jammu and Kashmir via a Presidential Order in 1954. Among other things, this order empowered the Kashmir state legislature to regulate the rights of permanent residents. These were subsequently defined in the Jammu and Kashmir constitution of 1956.”
“Article 35A of the Indian constitution clarifies the different status of J&K in this regard.”
Raghavan goes on to say that: “The Presidential Order of 1954 cannot be questioned without questioning the validity of other provisions of the Indian constitution it extended to Jammu and Kashmir. What’s more, such orders have periodically been used to amend the state’s constitution.”
Legal opinion is that if Art 35A is annulled, all the Presidential Orders issued since 1950 would have to be annulled and Kashmir will get back all powers except those relating to Defense, Communication and Foreign Affairs.
Therefore the abolition of Art.35A may injure the Indian nationalists‘ case more than its retention on the statute book.
Violence in Arunachal Pradesh
The on-going violence in Itanagar, the capital of Arunachal Pradesh, was triggered by the government’s move to provide Permanent Resident Certificates (PRC) to six non-tribal communities living in the State for decades. The BJP is in power in Arunachal Pradesh.
Last week, an irate mob of locals burnt down Deputy Chief Minister Chowna Mein’s multi-storied private residence. State Environment and Forests Minister Nabam Rebia’s shopping complex at Naharlagun town was also set on fire. Groups of people advanced towards Chief Minister Pema Khandu’s private residence apart from vandalizing the city’s main police station and the office of the Deputy Commissioner. Army and paramilitary personnel, who were called to restore normality, were pelted with stones.
Natives and Outsiders in Manipur
In Manipur, the Manipur People’s (Protection) Bill, passed unanimously by the Manipur Assembly in July 2018, aims to grant the status of “natives” to Meiteis, Pangal Muslims, scheduled tribes and others who moved to the state before 1951.
The rest are to be categorized as “non-Manipuris”, who will have to register themselves within one month of the ratification of the law.
The bill is yet to receive the assent of the President of India. The Manipur Chief Minister N.Biren Singh, who belongs to the BJP, has appealed to Prime Minister Narendra Modi to get the President’s assent before parliament passes the Citizenship (Amendment) bill of 2016. Like Arunachal Pradesh, Manipur is also ruled by the BJP.
Citizenship (Amendment) Bill of 2016
In Assam and indeed throughout the North-East, there has been a long standing movement to protect locals from being swamped by Bangladeshi Muslim economic migrants who had entered and settled in these States over the years with the tacit consent of the then ruling Congress party which survived on minority/immigrant votes.
However, what was earlier a movement to keep Bangladeshi Muslims out, is now a movement to keep even the Bangladeshi Hindus out because under the Citizenship Amendment Bill of 2016, non-Muslims from Muslim countries like Bangladesh, Pakistan and Afghanistan could apply for Indian citizenship with just six years’ residence in India as a required qualification.
The bill of 2016, if passed, will open the floodgates to Hindus, Buddhists, Christians, Sikhs and other non-Muslims from Bangladesh, Pakistan and Afghanistan.
The earlier Assamese struggle to get a National Register of Citizens (NRC) drawn up on the basis of official documents pertaining to permanent residence, has now become a struggle against the Citizenship Amendment Bill of 2016.
Thus, the threat to Assam from outsiders has been a continuous one. And it is not going to go away as the Bharatiya Janata Party (BJP) is bent upon bringing the bill back to parliament. It had chickened out earlier this month because of lack of numbers in the Rajya Sabha, the Upper House of the Indian parliament.
(Demonstration by traders to save Art 35A of the Indian constitution which gives the Kashmir government power to define Permanent Residency and extend privileges)