Tuesday, November 20, 2018
 
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No State has law like Article 35A, Governor Sahib
Straight Talk





K. B. Jandial

None of the past 12 Governors of J&K has spoken as candidly as the incumbent Governor Satya Pal Malik has been doing ever since he was sworn in on 23 August this year. Many a times, it appeared that the Governor has transcended the constitutional boundaries of the coveted office he holds but then, nowadays some Governors are seen to even speaking on TV channels through ‘phone-in’ while some others have raked up controversies by publically speaking against the State Governments, they constitutionally headed.



When the new Governor publically spoke for the first time at the launch of India Post Payments Bank facility at SKICC on 1st October, 2018, it was taken as if he was trying to establish an emotional chord with Kashmiris by ‘equating’ India with Pakistan while making a point about the significance of Civic and Panchayat elections. He was bringing home a point that these elections would neither benefit India nor Pakistan but the local people with greater inflow of Central funds besides empowering them to address their local developmental problems themselves.


But now, Governor sahib is opening up his mind on many issues, almost on daily basis, in interviews with TV channels and interaction with print media. The Governor in his assessment has held some political parties responsible for the ‘mess in Kashmir’ and gave clean chit to NDA Govts at the Centre- incumbent Modi Govt and earlier Vajpayee Govt, the later has lot of credibility in Kashmir for his landmark CBMs. In the changed national political narrative which is marred by the ‘doctrine’ of no-hold-bar & tu tu main main , all these things are getting, by and large acceptable in the society, sometimes with a pinch of salt. The targeted opposition parties have started responding to these. Whatever one may say about his unconventional style, he has changed the narrative in Kashmir besides some good initiatives like dialogue with Kashmir youth.



All said and done, the Governor is a constitutional head and he requires to be apolitical (at least in public domain) his past political loyalties notwithstanding, and deserves respect from one and all. But all this goes off when the Governor tends to step into the domain of politicians who, by and large, lack credibility among the people as they are expected to say anything, many times without knowledge of the subject, just to move with the current and meeting political ends. Veteran Kashmiri politicians are known for saying one thing in Srinagar, the other thing in Jammu and the third thing in Delhi; and still get away with these contradictions as the gullible people are mesmerized by their ‘holier than thou’ image or don’t give attention to these gimmicks. But the people don’t expect the Governor to say incorrect and unfounded things.





While political parties have started reacting to some of Governor’s observations in Kashmir,
Jammu is dismayed at Governor’s “unwarranted comparison” of Article 35A, challenged its vires in Supreme Court, with some unspecific laws of Himachal Pradesh and North East in an interview with Indian Express. The newspaper has quoted the Governor, first on 4th October, 2018 and then in full interview next day on this controversial constitutional provision that has regrettably polarized the State on religious lines. The newspaper quotes him “I told them (parties), 35A is no issue. This is posturing for the Assembly elections. I am not an elected representative, but my stand is that arguments on 35A should be deferred until there is an elected government in power. And in January, when we go back to the court, we will say the same thing. Party (BJP) toh is mein gayi hui nahin hai. Modi ji ka toh koi aadmi muqadmein main hai nahin. Woh toh pairvi nahin kara rahe hain”. (The fact is that the first petitioner in the case, “We the Citizens” is Sangh sponsored NGO which is, of course, no crime.)




On the Valley’s apprehension about moves to tinker with Articles 370 and 35A, the Governor has reportedly said “there is nothing to worry about (it)”. “It is possible that we (India) have not kept the promises made at that time but I guarantee that on 370 and 35A, and I have faith in the Indian judiciary, there is nothing to worry about.” It has also reported that Governor Malik claimed that “his position on Articles 370 and 35A had been endorsed by the Centre”.




Apparently, the Governor has made his stand clear, albeit of Modi Govt, on Articles 35A & 370 the lack of clarity on which was made a ground for poll boycott by Dr. Farooq Abdullah that forced Mehbooba too to join the bandwagon. If the Governor had the permission of PM Modi to share the stand on these Articles, why it was not done when Dr. Farooq Abdullah was demanding it? Perhaps, there would not have been poll boycott by both Kashmir based major parties.




The Governor, in a way, has almost “pronounced judicial verdict” by saying “I guarantee” and “there is nothing to worry about (Articles 35A & 370)”. Obviously, he is assuring the people of Kashmir that SC would uphold these Articles. So, the matter should be settled as the Governor represents both Governments, GoI & J&K. Moreover, J&K Constitution makes him an ‘uncrowned’ King of J&K, investing in him all the powers except of judiciary. But this time, he is “speaking” for Judiciary too!


The Governor (Govt of J&K) and the Govt of India are entitled to take any position on these constitutional provisions and there should be no issue but to say something which is not a fact, is unpalatable. If the Governor thinks and seeks to make the people to believe that “Article 35A has no problem”, legally and constitutionally, and is like Himachal Pradesh’s law or any other State’s law on land purchase, it is inappropriate. Some laws do exist but those are mostly for agricultural land and no other property. And various States follow different procedures for the purchase of agricultural land. In certain States, only an agriculturist can purchase such land whereas there are no restrictions in other states.



First, the Permanent Resident provision in J&K Constitution (Section6 to 9) and Article 35A of Constitution of India that protects these discriminatory provisions (Permanent Resident laws) have no parallel in the country and any attempt to point out its similarity with any of the laws in H P, North East States or any other State only expose poor knowledge of the Constitution and agrarian laws of different states. None of these are comparable with J&K’s unique Permanent Resident law (as usually called Article 35A).



Coming to Himachal Pradesh specifically, there is no law that debars any Indian Citizen to own and settle anywhere in the State. Secondly, there is no law that prohibits outsiders (non- Himachali Indian citizens) from buying property and live there. Himachal Pradesh has a law called H. P. Tenancy and Land Reforms Act, 1972 whose Section 118 is the relevant to the issue and misinterpreted to claim that outsiders cannot buy land or property. This section only imposes “restriction on transfer of land in favour of a person who is not an agriculturist of the State”. This Section and rules made thereunder have been amended from time to time to further the basic intention behind its enactment of protecting the interests of local agriculturalists while ensuring that the development of the State is not hampered. This Section even allows a non-agriculturist of the State or outsider to buy even agricultural land, but only with the permission of the State Government. There is no bar on sale and purchase of built up property like multi-storey flats which are owned by many outsiders (my non-Himachali relatives have flats in Shimla).


Yes, there is Domicile law under which certificates are granted to persons who are continuously living in the State not less than 20 years. Such certificates are relevant for availing limited benefits like admission in State Govt Professional colleges and Govt jobs and have nothing to do with purchase of property.

Even in North East and other States including Andhra Pradesh, Goa, the provisions under Article 371-A to 371-I of Constitution of India protect tribal land, property, culture, languages, social practices, customary law etc. It is only in Sikkim which joined the Union of India in 1975, Maharaja’ Regulation of 12 October, 1962 that imposed restrictions on transfer of property to non-Sikkimese, continues even today. Apparently, it was to protect rights of tribal that originally constituted the population. Article 371F (k) of the Constitution protects all laws in force (including this Regulation) before joining the Union unless repealed or amended by the State Legislature. But the issue before the Apex Court on Article 35A is its constitutional validity also as the President is not empowered under Article 370(d) to add a new Article as is the case with Article 35A. In case of Sikkim, Article 371F (k) mandated continuation of “all laws in force immediately before” joining the Union. That too makes the issue different from Article35A.




It is, indeed, a matter of indignation that even today, Jammu continues to be treated differently by the Centre by ignoring its sentiments and genuine aspirations. The Centre, earlier BJP-PDP regime and then the Governors (both Vohra & Malik) never publically supported Jammu’s concerns, be it the discriminatory Permanent Resident law (Article 35A), political disempowerment by blocking Delimitation Commission, inadequate representation in services, development etc. Jammu has never been ‘recognized’ as an important stakeholder in permanent settlement of pending issues as all Govts and individual leaders had always taken Jammu for granted. Many feels that the Governor has taken anti- Jammu stand on Article 35A with the tacit approval of the Centre, obviously to “win” over Kashmir which has not been won in the past nor would be in future. Despite being a political Governor, Mr. Malik couldn’t ‘honour Jammu’ by sparing time to visit Jammu during the last two months. Be that so, his effort to draw similarity of Article 35A with H.P. or North East States are just unacceptable in Jammu.



(The writer is former Secretary Information, health, transport, CAPD departments and a member of Public Service Commission, feedback: [email protected])




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