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Travesty & tragedy of J&K democracy

Travesty & tragedy of J&K democracy

Author: Arvind Lavakare
Publication: Rediff on Net
Date: April 29, 2004
URL: http://www.rediff.com/news/2004/apr/29arvind.htm

Chowdary Hari Ram was 24 years old when he escaped from the holocaust against the Hindus in Pakistan in 1947 and settled down in Rangpur Sidhriya village on the Indo-Pak border in the Jammu constituency.

There are more than 100,000 like him who fled from West Pakistan, settled in Jammu and, as Indian citizens, voted in different Lok Sabha polls from 1967 to the Jammu by-election in 2002. These 100,000 and more have now reportedly closed the doors on political parties seeking their vote for Lok Sabha 2004.

In a PTI report published on page 5 of The Free Press Journal, Mumbai, April 18, 2004, Chowdary Hari Ram, now 81, explains why all the West Pakistan refugees like him are 'fed up' of politicians seeking their vote.

'They are repeating the same 50-year-old promise to get us citizenship in Jammu and Kashmir,' he says. And in what is the biggest travesty-cum-tragedy of democracy in J&K and India, Ram says, 'We have lost faith in the electoral or democratic process and have accepted our fate as unwanted citizens.'

Legitimate and long-recognised Lok Sabha voters dubbing themselves as 'unwanted citizens' -- how can that be? The explanation is in the horrific reality that these 100,000 and more West Pakistan refugees are Indian citizens all right under the Constitution of India, but even 57 years after they settled in J&K, they are not citizens of J&K and are therefore denied, among other rights, the right to vote in the state assembly election.

What the Dickens does it take to be recognized as a J&K citizen?

Simple: you must be designated by the J&K state government as belonging to the elite category called 'Permanent Residents' defined in Section 6 of the state constitution that came into full effect from January 26, 1957. And provision (b) under Section 9 of the state constitution allows the J&K legislature to make laws conferring special rights and privileges to the Permanent Residents while denying the same to other residents of the state. Those grossly discriminatory laws have been in place for long.

But who are designated as 'Permanent Residents'? The state constitution's Section 6 goes as follows:

'(1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the state, if on the fourteenth day of May, 1954:- (a)   he was a State Subject of Class I or the Class II; or (b)  having lawfully acquired immovable property in the state, he has been ordinarily resident in the state for not less than ten years prior to the date.

(2) Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or of Class II and who having migrated after the first day of March, 1947, to the territory now included in Pakistan returns to the state under a permit for resettlement in the state or for permanent return issued by or under the authority of any law made by the state legislature shall on such return be a permanent resident of the state.

(3) In this section, the expression "State Subject of Class I or Class II" shall have the same meaning as in the State Notification No.I-L84 dated the twentieth April 1927, read with State Notification Np.13 L dated the twenty-seventh June, 1932.'

Because the West Pakistan refugees numbering more than 100,000 were residing in what became Pakistani territory, and were therefore not State Subjects under the J&K of 1927 ruled by a Maharaja, those refugees cannot be designated as 'Permanent Residents' unless the definition of that category is itself made very humane and lenient. That alteration has not been done by the J&K legislature although it does have the power to do so under Section 9(a) of the state constitution.

Now just have a look at some of those discriminatory laws in J&K.

(i) Persons who are not 'Permanent Residents' are not entitled to transfer any land in their name under Section 4 of the Land Alienation Act, 1995;

(ii) In terms of Rule 17 of the Jammu & Kashmir Civil Services Rules, no employment under the Jammu & Kashmir government is permitted to persons who are not 'Permanent Residents',

(iii) A person who is not a 'Permanent Resident' is disqualified from being a member of a village panchayat under Section 6(a) of the Panchayati Raj Act, 1989.

There are other such closed doors to those who are, like the 100,000 and more West Pakistan refugees, condemned to be residents of J&K state but not its 'Permanent Residents.' It's ghastly, yes, but it's legal and constitutional.

What makes it a cruel joke of democracy is that all such laws are blessed by one part of the Order of the President of India issued under Article 370 of the Constitution of India on May 14, 1954. That Order created Article 35A which laid down that --  'Saving of laws with respect to permanent residents and their rights. 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 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 provisions of this part.'

The above Article 35A is the most conspicuous example of how Article 370 of the Constitution of India has denigrated India's democracy and prevented national integration. It is also the most conspicuous illustration of what damage can been done to India's federal fraternity and governance when one constituent state gets 'autonomy' that is virtually azadi if not exactly 'autocracy' and yet demands more of the same.

That's not all; there's more evil coming. Article 35A was, remember, introduced in May 1954 -- three years before the J&K Constitution was formulated. And do you know what the Preamble of that Constitution promised to the people of J&K? Among other noble concepts, the Preamble promised 'Equality of status and of opportunity' and assured 'the dignity of the individual.'Can any authority in Srinagar and New Delhi tell us just how Chowdary Hari Ram and more than 100,000 other like him in Jammu have been delivered either that 'equality' or 'dignity' or both? Can anyone deny that special privileges and rights conferred on 'Permanent Residents' through the state constitution provisions are, in fact, a rape of that very constitution's Preamble?

Even bigger than this tragedy-cum-travesty of democracy in J&K is the fact that none of the new breed of human rights activists in our land have moved a finger to set matters right on Article 35A or its father, Article 370 itself. No one from that breed has, one recalls, ever moved the Supreme Court to save the situation, while thousands of Chowdary Hari Rams crave for what are only fundamental rights. Fie on all of them who have ruled all these years from Srinagar and New Delhi and fie on all the human rights 'missionaries.'

Tailpiece: The Times of India reported the other day that Pannun Kashmir, a body of Kashmiri Pandits, had written to the Election Commission that though thousands of them became eligible to vote since 1990, they had been unable to enroll themselves in the electoral list because of 'the failure of the Commission to create a mechanism for doing so.' So why then did James Michael Lyngdoh, the then Chief Election Commissioner, get the Magasaysay award? Was it because he succeeded in deferring Narendra Modi's return to power?

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