Friday, April 19, 2019

Some Supreme Court Cases, non Article 35(a) and the Propaganda


Sampat Prakash, a self-claimed Naxal labor unionist, was arrested and taken into preventive custody on 18th March 1968 under the Jammu and Kashmir Preventive Detention Act No. 13, 1964. The held him in captivity for long duration, although in non-violent, humane manner. But, what made the detention legal.

This was possible because Art. 35 (c) was introduced in 1954 providing protection to any law relating to preventive detention in the State against invalidity on the ground of infringement of any of the fundamental rights guaranteed by Part III of the Constitution. It was originally meant for only 5 years. In 1956, ,the Constituent Assembly of the State completed its work by framing a Constitution for the State and it came into force on 26th January 1956. In 1959 the period of 5 years in Art. 35(c) was extended to 10 years and in 1964, it was further extended to 15 years by Orders passed by the President of India under Art. 370(1).

Matter went to Supreme court on 10 October, 1968. Justice Hidayatullah was on the bench.

First things first (contrary to propaganda):


1. The case had nothing to do with 35(a).

2. Sampat Prakash's defense was that he wanted protection under fundamental right guaranteed by constitution of India. And that since Constituent Assembly stood dissolved, extensions provided to 35(c) was ultra vires, done without authority. In a way defense wanted to ignore 35(a).

His defense was:

Art. 370 of the Constitution could only have been intended to remain effective until the Constitution of the State was framed and the will of the people of Jammu & Kashmir had been expressed and, there after, this article must be held to have become ineffective, so that the modifications made by the President in exercise of the powers under this article, subsequent to the enforcement of the Constitution of the State, would be without any authority of law.


It was Attorney-General appearing on behalf of the Government of India who defended the continuance of article 370. According to Government the "situation that existed when this article was incorporated in the Constitution had not materially altered" thus the article stays. The court agreed "The legislative history of this article cannot, in these circumstances, be of any assistance for holding that this article became ineffective after the Constituent Assembly of the State had framed the Constitution for the State."

So what was this "situation" and "these circumstances"?

Since the court case was about preventive detention that is in spirit is at conflict with fundamental right in constitution of India. Government explained the situation (quoting Gopalaswami Ayyangar when he moved in the Constituent Assembly clause 306A of the Bill, which now corresponds 'with Article 370 of the Constitution) as:

(1) that there had been a war going on within the limits of Jammu & Kashmir State; 

(2) that there was a cease-fire agreed to at the beginning of the year and that cease-fire was still on; 

(3) that the conditions in the State were still unusual and abnormal and had not settled down; 

(4) that part of the State was still in the hands of rebels and enemies; 

(5) that our country was entangled with the United Nations in regard to Jammu & Kashmir and it was not possible to say when we would be free from this entanglement; 

(6) that the Government of India had committed themselves to the people of Kashmir in certain respects which commitments included an undertaking that an opportunity be given to the people of the State to decide for themselves whether they would remain with the Republic or wish to go out of it; and 

(7) that the will of the people expressed through the Instrument of a Constituent Assembly would determine the Constitution of the State as well as the sphere of Union Jurisdiction over the State.

Of these what had (or has) materially altered:

(7) Constitution of the State is already done.

(6) the Government "had committed", the language is not "has committed".

(5) UN is no longer holding any special sessions for Kashmir. Even Gandhi in 1948 understood that taking the matter to UN was an open invitation for western politics to be played in Indian subcontinent.

(4) POK. Indian Government almost agreed to converting LOC into international border. What would have been the impact of article 370?

(1), (2) and (3) can be summed up as War and Subversion are still existing in Kashmir. If article 370 or any article enables it. What to do with it?

The ruling shows that article 370 is not a permanent feature, it is dependent on "situation".


It is kind of funny that this case (in which petitioner, a Naxal wanted to extend an article concerning fundamental right to J&K state ) is now hated by Sangh intellectuals, they say: "The judgment of the Supreme Court in Sampat Prakash case in 1968 upholding the power of the President to extend to J & K the Constitutional amendments was outrageously wrong". Organiser Magazine. 1992). The reason: because Supreme court held in 1968 that article 370 was needed.

Meanwhile A.G.Noorani, unofficial Indian brain on hire for Kashmiri ultra-nationalism also bemoans the case. According to him: "The court held that Article 370 can still be used to make Orders thereunder despite the fact that the state's constituent assembly had ceased to exist....[that] Supreme court totally overlooked the fact that on its interpretation, Article 370 can be abused by collusive State and Central governments to reduce Article 370 to a nought." [Article 370: A Constitutional History of Jammu and Kashmir By A.G. Noorani]. Essentially the state assembly of J&K can modify the nature of State constitution, President of India can approve it and it will be treated as if (non-existent) constituent assembly of the State did it.

Away from all these complicated matters, when Art. 35(a) controversy started, the simplistic Tahreeki propaganda factory in Srinagar celebrated Sampat Prakash (emphasising his Kashmiri Pandit identity) and freely quoted him for hysterical effects saying that he was saved by article 35(a). When the truth is Art. 35(c) was being discussed in the court, and Sampat's defence was that his fundamental right offered by constitution of India was being violated by the J&K state which had no authority to do it as the constituent assembly was already dissolved. It is funny that the experts in Kashmir celebrated the case as a win. Article 35(c) deprives the residents of the state of certain protective constitutional guarantees available to other citizens of India. It is as discriminatory as article 35 (a). Given the status of detainees in J&K, one would think sensible people would towards abolition too. But forget all this because Sampat Prakash is needed by Tahreek to be the KP Hindu face of its propaganda.

While on the same subject of propaganda, there were some other equally fancy celebratory balloons also released in state. It was claimed that land distribution was also made possible because of Article 370 and Article 35(a). Is that the case?
First thing first. It was Sheik Abdullah who declared the first land distribution act, from Mujahid Manzil, headquarters of NC, he did it even before it was discussed in the state assembly, without consulting the head of the State, Karan Singh. By declaring it from a political platform, he forced the hand of the state and the "Big Estate abolition Act" came into force. Land owners were not paid anything in return. In a few years, the state was reeling under the ill effects of the not too well thought out implementation and massive corruption. [for ref. Dr. Daniel Thorner, University of Pennsylvania, on Kashmir Land Reforms, EPW, 1953. How "new jagirdari" system was carefully created by selectively abolishing old one.]

Rise of "khadpanches" (people, who hang around the village officials in the hope of gaining influence or wealth)
"The Kashmir Land Reforms Some Personal Impressions" by Daniel Thorner
EPW, 12th September 1953


With that said, getting back to the subject. In 1950, Article 31 of the Indian Constitution ensured that "no person would be deprived of his property save by authority of law, and it would not be acquired save for a public purpose, and most crucially, it provided for the payment of adequate compensation." It was a fundamental right [It no longer is. It was Janta government [with early BJPites] which struck it down with 44th Amendment of 1978. If an individual can lose land for greater good? Can a group of people also lose it for greater good of another group? Isn't that what actually happened? Can it happen again, say with another group?].


Article 31 was the main reason why earlier land reform acts in other states like Kerala and Bihar ran into lot of trouble. To circumvent it ninth Schedule of the Constitution was introduced [the current standing of which is also controversial today because essentially due to some ruling it seems Judiciary today had the final say of defining the spirit of the constitution]. It is interesting that while Nehru backed Sheikh's land reform in Kashmir, in Kerala, first democratically elected communist government was dismissed over the issue. It is however important to remember Kerala went on to implement Land reforms more successfully without having Article 370 to back the move. It is pure propaganda to claim that land reforms would not have been possible without Article 370. It is a malicious thought being sold to Kashmiris, fanning their xenophobia.


Even in case of Jammu & Kashmir, the matter did go to Supreme court in 1959. In Prem Nath Kaul vs State of Jammu and Kashmir, petitioner, claimed his fundamental right had been infringed by "The Big Landed Estates Abolition Act, 1950". In this case the court held that instrument of accession was the key, in the judgement it said: J&K Big Landed Estates Abolition Act was valid and not ultra vires the powers of Karan Singh conferred on him by Maharaja Hari Singh entrusting the administration to the former. The Constitution Act clearly brings out that Maharaja Hari Singh was absolute monarch and all the legislative, executive and judicial powers vested in him without any fetters. As a result of the passing of the Indian Independence Act, 1947 Maharaja continued to be absolute monarch of the State and in the eye of International Law [not Indian law or Independence act] he could have claimed the status of sovereign Independent State [fate of which was sealed by Pakistani aggression in1948 even after Jinnah promised Maharaja that his say in the matter will be final]. The execution of the Instrument of Accession did not make any inroad on the aforesaid powers which vested in him. [Instrument of Accession does also say that only he can purchase land and lease it out in case GOI needed Land in the state.] The court also held that no fundamental right was violated. [ref: Jammu and Kashmir: Political and constitutional Development, Justice Jaswant Singh, 1996].

Thus we can clearly see, article 370 or article 35 (a) had nothing to do with the first land reform in state. If anything, it was, ironically, instrument of accession, Karan Singh and Sheikh's populist manipulative move that made it possible.


Since "Kaul" case is the only one that is often remembered in propaganda circles for obvious reason. Pandit The Evil Land Lord. We do have another case of land owner(s) taking the State to court over land reform.


Khalid Fida Ali (and others) in 1974 took the State to Supreme Court over the later land reform act: J&K Agrarian Reforms Act (Act 6 of 1972). The petitioners, all big landowners, claimed that the compensation (this time there was compensation) offered to them was pittance, illusionary. That "orchard land" was kept out of the act deliberately (orchard owners were (are) the new rich class of the state).


In this case too, court [Justice P.K. Goswami] held the act valid and without relying on article 370 or 35(a). It was held valid because of article 31-A of Indian constitution. Art. 31-A, was inserted by the Constitution First Amendment Act, 1951, and provided for acquisition of estates of the nature referred to in various clauses, declaring that such laws shall not be deemed void on the ground that they take away any of the rights given by Article 14 or 19 of the Constitution.

The state on its part claimed: "Act is passed in order to ensure better production avoiding concentration of means of production in the hands of a few and to annihilate the exploitation of the peasantry. With regard to the objection regarding compensation, it is stated that the minimum rate of compensation has been fixed and the same is not illusory."

See, no mention of article 370, but direct reliance on Indian constitution and again the definition of fundamental right.

The 1972 act was later suspended and replaced by 1976 J&K Agrarian Reforms Act. In this act, orchard were again excepted but it did say:


"No person, who or any member of his family holds an orchard exceeding one hundred kanals shall be eligible to resume land (clause (g) of sub section 2 of section 7). So according to general rule any person who is holding orchard land exceeding one hundred kanals is in entitled to further resumption, but if a person is holding orchard land below one hundred kanals he will be entitled to resume land, but the aggregate land including the orchard land shall not exceed one hundred kanals."


An interesting feature of the act was that Gumpas of Ladakh were exempted. Since the beginning of Land reforms in State in 1950, Ladakhi Lamas [under Kushok Bakula] fought it tooth and nail as their temple land and centuries of traditional way of income was under direct threat [they knew what had happened in Tibet and what was happening]. Sheikh would not budge. However, now Gumpas were allowed to keep their land. But, along with Gumpas, other religious trust could also keep their land, and in effect their relation with their workers. What it all practically meant was that more and more land (cultivation) was converted to Orchards and more and more religious institutions cropped up in the state.


This in brief is history of land reform in the Jammu and Kashmir State. All this while I went to look into how fundamental rights enshrined in Indian constitution and the various acts in J&K constitution interact with each other, and how propaganda works in Kashmir.
   
-0-

Ref:

Sampat Prakash vs State Of Jammu & Kashmir & Anr on 10 October, 1968
https://indiankanoon.org/doc/1573666/

Sampat Prakash vs State Of Jammu & Kashmir on 6 February, 1969
https://indiankanoon.org/doc/879068/

KH FIDA ALI Vs. STATE OF JAMMU AND KASHMIR, 30 April, 1974


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