In 1954, a Presidential order accorded special rights and privileges to the citizens of Jammu & Kashmir. Indian citizens could not acquire immovable property in the former riyasat of Jammu & Kashmir. Effectively, therefore, the Constitution was refracted to provide for citizenship within a citizenship. Similar provisions, not labelled as “citizenship rights”, do give original inhabitants of, say, Meghalaya and elsewhere in India, privileges which are akin. One can work in Meghalaya for decades and will still not have the right to buy property. That may be important, but is a separate point.
The catch lies elsewhere. Former Prime Minister Jawaharlal Nehru’s fascination with the issues in Jammu & Kashmir is well-acknowledged. According to many, his facade of a democrat covered a hardcore reality of a self-willed leader. Irrespective of the controversies, the Maharaja of Jammu & Kashmir did sign the instrument of accession to India and that is what the Indian Independence Act required. Two realities queered the pitch. One part was the apparent dominance of the Muslim population in the Kashmir Valley. The second was the contiguity of border with Pakistan. Nehru adhered to give primacy to the sentiments of some in the Kashmir Valley and total neglect of the sentiments of the people of ladakh.
The writer of these lines, while preparing for a keynote address on the history of freedom movement in Jammu & Kashmir, in 1978, came across a narrative. It went as follows: When Sheikh Abdullah as the then Prime Minister of Jammu & Kashmir, in his early years in that role, was asked if a plebiscite would not be in order, he reacted sharply. He was of the view that once he had agreed to the merger, what significance was the plebisciteij The writer recalls raising this with Sheikh Saab at a State dinner at lal Chowk that year. His response was enigmatic and he had a counter question, “Don’t you agree with my viewij”
More to the point, with no Supreme Court ruling behind him, in 1954, Jawaharlal Nehru went to the then President to get orders according to special rights, as referred above for the citizens of Jammu & Kashmir, reference immovable property. Interestingly, the same order denies property rights to a woman who marries a person from outside the State. It applies to women in property matters and also applies to her heirs. Whether the women’s rights movement had ever protested about this discriminatory provision of the order at any time in the last 65 years, it is this country’s best-kept secret. As an afterthought, the protagonist of this clause have sighted two verdicts of the Constitution benches of the Supreme Court in 1961 and 1969, which cite Article 370 (1)(D) of the Constitution that entitles the President to pass Constitutional orders. If that is accepted, Indian democracy needs to be redefined.
This debate is unlikely to be resolved in a hurry. The latest mood seems to be to postpone the hearing of the petition challenging the Constitutional validity of Article 35A till early next year. Grounds can always be found. There are many other contradictions in the way legality is used to push the point of view of the politically powerful of the day, to an institutionalisation frame. Once institutionalised, stakeholders in the decision emerge, and to reverse it, becomes problematic.
The crux of the matter seems to be strengthening the right to appeal. Nationwide, institution-wide and indeed against any framework of decision-making, right to appeal is an elusive proposition in India. The annals of the media and public experience are replete with examples where the key decision-maker had his/her way because either people kept quiet in default or did not feel stimulated enough to raise the questions. Put simply, it means that a decision may push for a point of view but it does not necessarily serve the cause. This is not good for collective welfare.
Helplessness delivering compliance is a dubious approach. Ultimately it does cause a shake-up. This shake-up does not necessarily follow the generational cycle of human existence. Autocratic styles have carried the day and the perpetrator has never paid his wages of unfairness and has passed way before retribution caught up. That indeed is the dilemma of a person’s ability to do right or wrong and the historical inevitability of the time it takes for the effects to incubate.
Clearly, at least while designing and running of our institutions, one should make every effort to follow certain ground rules of probity in decision-making. This is true of the Government working and, therefore, the Government institutions. It is equally true of private systems and private institutions. So often the decision is at the cost of the hapless individual who had a cause but not the means to see it through. This may prove to be one of the bigger enigmas of decision-making of our times.
(The writer is a well-known management consultant)