All posts by admin
Posted on 13 December, 2013, No Comments Comments admin
History has provided us another opportunity to approve the Lok Pal Bill which is pending for the last 46 years. Whether we correct the lapses and the weaknesses of the original Lokpal Bill as was introduced and approved by the Lok Sabha or we allow that to remain is being watched by the people of India. We need to restore faith in public life and create an effective mechanism to deal with corruption. It is important that we provide for an effective Lokpal legislation.
The Lok Sabha passed a Bill on December 27, 2011. On December 29, 2011 the Rajya Sabha disagreed with it. The majority members were in support of the amendments proposed by the Opposition parties. It was at this stage that the House was adjourned. Subsequently, the Bill was referred to the Select Committee, which has since submitted its report.
The Select Committee was headed by Shri Satyavrat Chaturvedi, a senior Congressman. It functioned predominantly on non-partisan lines and has come out with a large number of recommendations, which were substantially unanimous. However, there are some changes, which have been made by the government to the recommendations of the Select Committee. The issues which were required to be resolved by the Rajya Sabha are mentioned hereunder.
1. The procedure for appointment for Lokpal: The original Bill as approved by the Lok Sabha provided for a Five-member collegium, which would appoint members of the Lokpal. It comprised the Prime Minister, the Speaker of the Lok Sabha, the Leader of Opposition in Lok Sabha, the Chief Justice of India and a Jurist of eminence. Since a Jurist of eminence was appointed by the Government of India this could give the Government a majority in the matter of appointment. The Select Committee has recommended that the Jurist has to be appointed by the other four members through a consensus process.
2. Removal of erring members of Lokpal:The Bill as approved by the Lok Sabha provided for removal of Lokpal by a reference made to the Supreme Court by the President of India, on the aid and advice of the council of ministers. Thus only the Government of India could initiate the process of removal of a member by making a reference to the Supreme Court. Presently, the Select Committee has replaced this procedure and 100 members of Parliament are entitled to petition the Supreme Court asking for removal of a member of the Lokpal. In the original Bill, during pendency before the Supreme Court, the government alone was empowered to suspend an erring Lokpal. This power has now been shifted to the Supreme Court.
3. Jurisdiction of Lokpal to cover NGOs:Clause 14 (h) provided that the jurisdiction of the Lokpal would extend to a large number of private organizations outside the government. The object of the Lokpal was to deal with the officers from the government. However, a ‘revenge Provision’ was introduced against the civil society by providing that any organization, which collects donations from the public would be under the jurisdiction of the Lokpal. Thus, all religious organizations, education organizations, societies, cooperative societies, clubs and associations or any other body doing charitable work which claims funding from the government would also be covered under the Lokpal. This would increase the burden of work on the Lokpal without larger public interest being involved. The Select Committee recommended the deletion of this provision. It recommended that only such private bodies would be covered, which either receives funding from the government or from foreign sources.
The government though its official amendments has sought to deal with this provision by excluding religious organization but allowing the Lokpal to have jurisdiction against any other private organization. There is no rationale in Lokpal having jurisdiction over bodies, which have nothing to do with the government or instrumentality of the state. The BJP is of the opinion that the recommendation of the Select Committee are fair and should not be interfered with.
4. Procedure for Inquiry: The original Bill, as approved by the Lok Sabha, provided for a complicated procedure for inquiry and investigation. It provided that a reference would first be made to the Lokpal, who would conduct preliminary inquiry itself or through the CVC. Thereafter it has to decide whether to refer the matter to the CBI or any other investigative agency or not. At this stage, all documents would be shared with the delinquent. After the completion of the investigation by the CBI or any other investigative agency, the said investigation would come back to the Lokpal and the Lokpal itself would become the prosecuting agency. All experts who appeared before the Select Committee, disagreed with this recommendation. The select committee has therefore recommended a straight forward procedure for investigation. The said provisions now include a preliminary inquiry by the Lokpal, a reference to the investigative agency to investigate the case, filing of the charge sheet or the closure report by the investigative agency. It has further provided for grant of sanction after obtaining opinion of the competent ministry. The power of granting sanction has been vested in the Lokpal. While most of these recommendations have been approved by the government, the government has introduced a new provision by which at the stage of preliminary inquiry, before embarking on preliminary inquiry, the delinquent official would be provided a hearing by the Lokpal. This would render the inquiry or investigation otiose. In cases involving bribery, accumulation of wealth, disproportionate assets, where an official has to be taken by surprise, searched and raided, the provision for grant of an opportunity for hearing before such action can be taken would defeat the purpose of evidence collection. This is an important area of disagreement between me and the changes as proposed by the government. It is important that we go back to the recommendation of the Select Committee. The recommendation of the Select Committee should be accepted.
5. Central Bureau of Investigation: The Select Committee examined in detail various proposals with regard to ensuring professionalism and independence of the CBI. It has made several recommendations in this regard. There would be two separate wings in the CBI viz. the Prosecution Wing and the Investigation Wing. There would be a Director, Prosecution appointed on the advice of the CVC. The CBI, Director would be appointed by the collegium comprising the Prime Minister, the LOP and the CJI. The Director, CBI would be the head of both the wings. The Director, CBI and the Director, Prosecution would have a fixed tenure. The power of superintendence with regard to the CBI in relation to the Lokpal-referred cases would vest in the Lokpal. The panel of advocates representing the CBI would be independent lawyers and would be appointed by the CBI with the consent of Lokpal. Certain amount of financial powers would be vested in the Director, CBI in order to ensure independence of the investigation and incurring of the expenditure necessary for making fair investigation.
However, there is one area of difference between the recommendations of Select Committee and my view. I had proposed that the transfer of the officials investigating cases, referred to by the Lokpal, during the pendency of the investigation, can only take place with the concurrence of the Lokpal. However, the power as it stands today is vested in the government. The government can defeat the purpose of independent investigation by transferring an inconvenient officer. This requires a relook.
6. Lokayuktas in the states: A Lokayukta in the state can only be appointed by a law passed by the state legislature. This is because the subject matter deals with the services of the state. The Select Committee, therefore, rightly provided for a provision, which would provide Lokayukta in the state and for that purpose a model law would be circulated to all the states on the pattern of the central Lokpal Act.
On a joint reading of the recommendations of the Select Committee and the government’s amendments to the same, there are only four areas of disagreement that I have with the proposals under consideration.
1. There cannot be a provision for a religion based reservation in the matter of jurisdiction of Lokpal.
2. Transfer of officers during investigation can only be done with prior approval of the Lokpal and not otherwise.
3. No opportunity of hearing can be given at the stage of preliminary inquiry to a delinquent official since that would defeat the very purpose of the inquiry itself.
4. All NGOs which are neither funded by the government nor by foreign sources should be outside the jurisdiction of the Lokpal.
Posted on 10 December, 2013, No Comments Comments admin
The Parliament had appointed a JPC to examine the matter of allocation and pricing of telecom and spectrum. The report of the JPC, approved by a slender majority, was laid on the table of Rajya Sabha today. The conduct of the Congress party and the UPA government makes it clear that they have failed to learn the lessons from the results of the recently held assembly elections. The strategy is to first indulge in acts of corruption and then subvert constitutional institutions in order to cover them up.
The principal issues that the JPC had to examine were with regard to –
( 1.) Whether Spectrum allocated in 2008 could be given at 2001 prices?
( 2.) Whether the goalposts could be shifted in relation to the procedure by which the Spectrum had to be allocated?
( 3.) Whether the Prime Minister and the Finance Minister were in the know of and privy to the decisions taken by the then Telecom Minister?
The Majority Report bypasses most of these issues. On the contrary it has devoted large sections of the Report to blame the NDA government. Obviously, the report will carry no credibility. The JPC, which went into the BOFORS Case invented a theory that commissions paid to the middlemen were not kickbacks but winding-up charges. The CBI charge sheet negated this theory. The Parliamentary Committee, which went into the Cash-for-Vote scam blamed the Opposition MP’s. The trial court has now held that they were whistle blowers and had committed no offense. If we want that the dignity of the Parliamentary institutions be maintained, we must ensure that the truth surfaces and not be covered up.
The note of dissent given by the Opposition MP’s to the Chairman of the Telecom JPC has been edited. Today, I raised an issue in the Rajya Sabha, whether the Chairman of the Committee can only edit superfluous or Un-Parliamentary references made in a note of dissent, or can he change the substance of the dissent note that was submitted? By doing so, the Chairman has committed a breach of privilege. I invited a ruling from the Chair on this issue? Regrettably no ruling came.
The only consolation I have is that the Government stands exposed. The Emperor is without clothes. Even a Parliamentary cover-up through a JPC will not save it of the embarrassment.
Posted on 09 December, 2013, No Comments Comments admin
The BJP-Akali Dal Alliance has won 32 constituencies of Delhi. This is about six to eight seats short of our expectations. We have narrowly lost in some assembly segments. Even though we have managed to retain a large part of our traditional votes, there was some shift even in middle class localities to the Aam Aadmi Party (AAP). The Congress was no longer a serious option in Delhi. Residents of Delhi were considering which of the two alternatives to vote for – the BJP or the AAP.
The AAP may have got lesser votes and seats than the BJP. However, that is not a ground for satisfaction for the BJP. The BJP’s march to comfortable majority has not been interrupted by the Congress. It has been interrupted by AAP. The lesson of the 32 constituencies that the BJP has won clearly reveals that most candidates who were well grounded in the constituencies and appeared to be electorally acceptable have won. The lesson for the BJP of these results is that the credibility-quotient counts in an election. The image of the leadership, as also of the candidate, must inspire confidence amongst the voters. The announcement of Dr. Harsh Vardhan’s name as the BJP’s Chief Ministerial candidate helped the BJP. Those who have a track record of serving their constituency well, have a better chance of being elected. Just getting a party nomination even in a stronghold is not enough. The days of conventional politics are now over.
Is the AAP merely a freak phenomenon? Or is it going to be a lasting experiment? The last word on this cannot be said at this moment. This party is unconventional. It has attempted to exploit the general mood of cynicism. It has made unrealistic promises and does not want to sit in a position of responsibility where it has to walk its talk. The very suggestion of being in government to implement its policy and promises appears to be scary for this party. In a democracy, the voters vote in order to elect the government. When there are no clear majorities, the government formation is an art of the possible. The Congress Party can give the AAP outside support in order to form a government. In Power, such a party would be like a fish out of water. It is possible to make exaggerated promises, and capture the imagination of a few by making unimplementable promises. The strategy of the party is to avoid power rather than be in a position to implement the unimplementable.
Posted on 08 December, 2013, No Comments Comments admin
The results of the assembly elections for four states have been announced today. We in the BJP are satisfied with the results. Madhya Pradesh has been a model of good governance for the BJP. It is a State represented by Shri Shivraj Singh Chauhan who turned it around from its original ‘bimaru’ status and put it on development path . Its road network has also increased substantially and the social schemes have been extremely successful. The Party has retained the State in three successive elections eliminating the possibility of anti-incumbency.
Chhattisgarh was carved out of that portion of Madhya Pradesh where the BJP was never traditionally strong. The Party has retained its strength and is in a position to form the Government for a third time in succession. If these two State Governments continue till 2018, Chhattisgarh and Madhya Pradesh would have seen the last Congress victory only in 1998 i.e. 20 years ago.
Rajasthan is the most important victory for the BJP. Vasundhara Raje’s leadership has a huge acceptability. After campaigning in the State, I had mentioned that I saw the BJP campaign ‘electrifying’. This is the largest majority BJP has ever received in a big State. We have won 82% of the seats.
In Delhi, even though we are the largest party and close to the majority figure, the result is below our expectations. We had expected at least 5-6 seats more than we have won. My congratulations to the Aam Aadmi Party for performing well in its first ever electoral endeavour. AAP campaign was noticed by the people and its mode of communication was effective. It is, however, yet to be tested whether in the long run, the campaign based on cynicism can be indefinitely sustained. My congratulation are also due to our Party President Shri Rajnath Singh for the victory of the party organization in these elections. Shri Narendra Modi who extensively campaigned in all the States deserves to be complimented.
This result leads us to the next campaign for the Lok Sabha . 72 parliamentary seats went to the polls in these assembly segments. The Congress has won very few of them. If arithmetical calculation is made, BJP would have succeeded probably in about 65 out of these constituencies. The next Lok Sabha election is going to be fought mainly between the BJP and the Congress. These results give an indication for the future. Cumulatively our strike rate in these assembly elections has been close to 70% . That is not a mean achievement.
Posted on 07 December, 2013, No Comments Comments admin
The Economic Times today carries a report on page 4 titled “Do Kings of Sting Operations Face a Credit Deficit ?”
The essence of the story is that a significant number of websites have come up in recent years. Most of them specialize in sting operations. They do not have a financial model either for existence or for survival. They have now started registering themselves as societies and non – profit organizations in order to avoid transparency which accompanies a company registered under the Companies Act. A company has to maintain regular accounts, and submit the Statement of Accounts and Balance Sheet to the Registrar of Companies every year. The same can be obtained by any person. The position of finances of the company therefore becomes transparent. This facility will not be available if the operator is not a company.
I have earlier commented that a large number of these websites have been used to target important Non-Congress leaders. Narendera Modi unquestionably has been their prime target. Recently, an investigation by one such was even targeted against the Aam Aadmi Party. In the absence of any financial model these websites depend on donations for their survival.
Invisible and non-transparent funding can render any organization a suspect. Such organizations can even be donor driven. The fact that the government and the Congress Party have ordinarily not been targeted by these websites raises an important issue of credibility deficit. Those who masquerade as crusaders must themselves be seem to be clean. They want transparency and openness with regard to others to the extent that they sting them to bring out certain facts in the public domain. However, their own survival depends on unknown sources. It is time that these websites made a full disclosure in public about the sources of their finances, their motivations and their selective targeting of only a few.
Otherwise a suspicion would continue that these are “sting cameras for hire”.
Posted on 06 December, 2013, No Comments Comments admin
The full court of the Supreme Court of India met on the administrative side on December 5, 2013. They considered the report of the three Judges appointed by the Chief Justice of India to go into the allegations made by a former lady intern against a former Judge viz. Justice A.K. Ganguly. After recording the statement of the intern and the affidavits of three witnesses and of the former Judge the Committee has observed that the allegations prima facie disclose an act of unwelcome behavior (unwelcome verbal/non-verbal conduct of sexual nature) by the former Judge in his room in the hotel on December 24, 2012. However, considering the fact that the court on the administrative side did not have a jurisdiction to deal with a retired judge and a former intern, the full court on the administrative side opined that no further follow up action could be taken by the court. The court further decided that if representations against former Judges are received, the same shall not be entertained by the administration of the court.
The decision of the full court, on the administrative side, is based on the rationale that since the court administratively cannot deal with a retired judge, no further action can be taken and it is up to the complainant and other authorities, to be at liberty to proceed with the matter in accordance with the law. This reasoning of the full court fails the test of conscience. Mahatma Gandhi had said, “there is a higher court than the courts of justice, and that is the court of conscience. It supersedes all other courts”. The administrative decision of the Supreme Court, is being closely watched by all citizens. Is the Court dealing with a former Judge, who currently holds the office as the Chairman, Human Rights Commission, West Bengal in the same way as it would have dealt with any other person who is or has been the holder of an exalted office ?
The Supreme Court functions predominantly on the Judicial side. Its functions are primarily Judicial. Its administrative functions deal only with administration and management of the court. When it is brought to the notice of the court that persons in high position have either abused their office, indulged in conduct unbecoming of the office, and the law enforcement agencies are likely to be overawed by the personality of the accused, the Supreme Court devised a concept of a ‘continuing mandamus’. The court nudges the investigation into action, and oversees the fact that the holder of the public office is to be dealt with in a manner as mandated by law. This is precisely what the bench of Justice G.S. Singhvi and Justice A.K. Ganguly did in the 2G Spectrum case. The standard that the Supreme Court follows for every holder of High office and must apply even more sternly to a sitting or former judge of the court. Nobody should harass a lady. Certainly not holders of high Judicial offices . If they act in a conduct unbecoming of the office, that they hold, the dignity of the institution and the popular faith in the judgments of the Judicial institutions gets eroded. It is now incumbent on the Supreme Court of India to ensure that the law must take its own course. ‘Be you ever so high, as the law is above you”, the Supreme Court has repeatedly told us. It must apply the same yardstick to itself. If it has found a former Judge of the Supreme Court prima facie committed an offence, it cannot follow an escapist route and hold that on the administrative side it has no jurisdiction. The Supreme Court is fully empowered on the Judicial side to ensure that the law takes its own course. It cannot escape from its Judicial responsibility.
It must place the case before a bench of the court on the Judicial side which must monitor the investigations in order to ensure Justice and fairness. Justice Ganguly must face the investigations as an ordinary citizen stepping down from the office he holds.
Posted on 05 December, 2013, No Comments Comments admin
The voting has been concluded for the election to the five state assemblies, which went to the polls. The results are anxiously awaited. The Exit Polls indicated that the Congress is likely to receive a drubbing almost everywhere. The Exit Polls only indicate the likely results. They are subject to the normal margin of error. Notwithstanding this limitation of the Exit Polls they indicate a trend. The Congress appears to be completely demoralized. In the last phase of the elections, the Congress leaders almost abandoned the election campaign for Delhi Assembly. Mrs. Sheila Dixit virtually fought all alone. Yesterday, the Congress spokespersons were conspicuous by their absence in the discussions on the Exit Polls. If this is the demoralization that the Exit Polls give to the Congress Party, I wonder what would happen when the actual results come in.
There is never a last day in the calendar of politics. It is an ongoing calendar. You never lose unless you stop trying. The Congress has stopped trying. This is precisely true for Delhi elections that were abandoned by its central leadership. The mess on the economic front that the Central government created, serious allegations of corruption, a policy paralysis and a non-inspirational leadership has demoralized the Congress cadres. Unless the Congress party responds to this reality, it will never find the correct answers. The relevance of charisma of a dynasty is never a long term answer in politics. When the political parties become a crowd around a family, the strength of the party becomes synonymous with the capacity of that family. The party itself has become a dynastic party. If the dynasty cannot deliver, the party itself fails.
I am only waiting to see, how the Congress Party reacts to the results of the Polls on December 8, 2013. Observing this Party closely, I have no doubt that they will not ask the right questions. Unless they ask the right questions, they will not get the right answers. I will not be surprised, considering the traditional thinking of the Congress, if their solution to the problem is “if one member of the family fails, let us try another”.
Posted on 04 December, 2013, No Comments Comments admin
The fundamental rights enshrined in the Constitution of India are an integral part of the constitutional basic structure. They are un-amendable. The most pre-eminent out of the freedoms enshrined in Article 19 of the Constitution is the Right of free speech and expression. It is pre-eminent because unlike other fundamental rights which can be restricted on account of certain reasonable restrictions, the right to free speech cannot be restricted on the ground of any undefined reasonable restriction. Article 19(2) provides specific conditions under which the right to free speech can be restricted. These restrictions must necessarily have nexus to sovereignty and integrity of India, the security of State, friendly relations of foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence.
No restriction can be imposed on the right to free speech either by the Government or by the Election Commission which falls outside the purview of any of the above circumstances. Three possible violations or potential violations of the right to free speech have come to public notice.
The Prime Minister and the Contrarian View
The first is an order dated 30/10/2013 issued by the Ministry of Information and Broadcasting . The order states that the Prime Minister is the leader of the country and not of a political party. When the Prime Minister speaks on national occasions, putting him in ‘artificial competition’ with anyone is not appropriate. This leads to denigration of the status of the Prime Minister and would be contrary to ethical journalism.
The order further states that the Cable Network rules forbid anything which is not in good taste, decency, slanderous or detrimental to social/public and moral life of the country. Any channel which shows the Prime Minister in competition would be liable for adverse action under the Uplinking and Downlinking Regulations as also a penal action under section 20 of the Cable Network (Regulation) Act. This is an unconstitutional censorship order prompted by the Modi-phobia.
The effect of this order is that on days the Prime Minister addresses the nation, no other speech should be telecast. The Chief Ministers of the States must be boycotted. Any comment of an Opposition leader should be censored. If this principle is accepted it may even extend to a Finance Minister’s Budget speech or a Defence Minister’s comment on the security of India. Censorship has no place in democracy. Censorship cannot be enforced directly or indirectly. Comment and criticism is a way of life. Even judgements of the highest court can be criticized. All individuals in public life must be subjected to scrutiny. We must be criticized when we go wrong. Criticism is a part of public accountability. Criticism which does not offend any of the Article 19(2) restrictions can never be restricted. No action under the Cable law can be taken for legitimate exercise of the free speech right. The restrictions under the Cable regulations must all be read in the context of Article 19(2). Otherwise such provisions of the Cable regulations may fall foul of Article 19(1)(a).
Airwaves are public property. They belong to the people of India and not to the Minister of Information and Broadcasting. The user of the airwaves is only regulated by the Government. The user can only be restricted on two grounds. Firstly, if airwaves are not available which is not presently the case. Secondly, if the user of the airwaves violates the constitutional guarantees for free speech and uses the speech against the sovereignty and integrity of India or any of the Article 19(2) restrictions. Disagreement with the Indian Prime Minister is not a restriction mentioned in Article 19(2).
The President of the United States each year delivers a ‘State of the Nation’ address. After the address is completed the Party in Opposition through its representative delivers it’s version of the ‘State of the Nation.’ This version is also globally telecast. Plurality of opinions is an inherent aspect of Indian democracy. If the Prime Minister speaks for the nation on a national day, so do the Chief Ministers and so does the Opposition.
Restricting Advertising Time
Earlier the Government on the advice of the TRAI has restricted the maximum number of advertisements that can be telecast in an hour. Ostensibly this hurts the business of a news channel. But effectively it hurts the right of free speech. In the Constituent Assembly, Late Shri Ram Nath Goenka had the vision to state that a time will come where the right to free speech will be restricted not through censorship but by pinching the business pockets of the media organizations. Commercial advertising supports free speech. If newspapers and televisions have no advertisements , they would be unable to exist. Advertisements supplement the right to free speech. Boredom of a viewer caused by lengthy advertisements is not a permissible restriction under Article 19(2). Both in the United States and India, the Courts have taken a consistent view that a business of a media organization can not be delinked from the exercise of right of free speech. If the size of a newspaper is restricted or the number of advertisements are restricted, it has a direct impact on its survival. Even if the circulation of the newspaper or viewership of the channel is adversely affected by pinching its revenues, it hurts free speech. Excessive taxation on media organizations which impinges on survival has been held to hurt free speech. Such restrictions in the name of sectoral regulations are clearly ultra virus of the Constitutional scheme.
Opinion Polls
Psephol ogy in India is still maturing. There are opinion polls and opinion polls. Some have acquired credibility and some can easily be ignored. Some are cases of even “participatory psephology.” Whatever may be the reliability or otherwise of these polls, can they be prohibited or banned? Polls like Gallup in the United States have acquired great credibility. Conducted on carefully chosen small samples, the polls normally prove correct. When the trend of opinion polls are adverse to the political parties, they rubbish them. They start demanding a ban. The loser demands a ban and the potential winner wants them to continue. A ban on such polls can not be considered based on who is demanding the ban. Clearly, polls are also a part of free speech. Restricting them is constitutionally neither permissible nor desirable. The Election Commission will be best advised to keep away from this controversy and allow the market place of democracy to accept or reject the findings of the opinion poll. If the polls can be legitimately banned in this country, the next step would be to ban political commentators from giving assessments favourable to some and adverse to some others. A potential loser in an election can not seek to alter the rules of Free Speech.
Posted on 04 December, 2013, No Comments Comments admin
Narendra Modi’s speech at Jammu invited Omar Abdullah’s response. After a long time, Article 370 is being seriously debated in this country. An ill-informed debate had earlier linked the issue of Article 370 to a secular v/s non-secular debate. Article 370 has nothing to do with Secularism. My own study on the subject has revealed a very interesting dimension as to how Article 370 can turn into an instrument of oppression and discrimination against Indian citizens.
Article 370 is a special provision created only in relation to the State of Jammu & Kashmir. It is a temporary provision. It relates to the distribution of power between the Centre and the State. The Central List in relation to Jammu & Kashmir was a small one. Most powers vested in the State Legislature. If any power had to be transferred from the Centre to the State, it required the concurrence of the State. Article 370 states as under:-
370. Temporary provisions with respect to the State of Jammu & Kashmir
(1) Notwithstanding anything in this Constitution,
(a) The provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) The power of Parliament to make laws for the said State shall be limited to
(i) Those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) Such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
Explanation :- For the purposes of this article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948;
(c) The provisions of Article 1 and of this article shall apply in relation to that State;
(d) Such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
Pursuant to the provisions of Article 370 (1) (d) the President of India by an order (not legislation) notified the provisions of Article 35A of the Constitution. The provisions of Article 35A read as under:-
35-A. 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 residences 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.”
There are thus citizens of India who have not been conferred the status of State subjects. The phrase ‘State subjects’ and ‘permanent residents’ are used interchangeably. Millions of people migrated to India in 1947. Those who settled in other parts of India have all the constitutional guarantees available to them. They are entitled to all fundamental rights available under the Constitution of India to the citizens. The unfortunate ones who migrated to the State of Jammu & Kashmir have been conferred citizenship of India. They can vote in national elections. They can hold property anywhere in India. However, they have not been conferred the status of being State subjects under Article 6 of the Jammu & Kashmir Constitution. Being citizens of India, they are discriminated against. They cannot vote or contest elections of the Assembly, Municipality or Panchayats in the State. They cannot get a job in the State. They cannot acquire property in the state. Their children are not entitled to admission to colleges as State subjects. The bright ones amongst them cannot even get scholarship or any other type of aid from the State. Article 35A of the Constitution of India executively inserted pursuant to Article 370 (1) (d) excludes the provision of ‘this part’ of the Constitution. ‘This part’ of the Constitution refers to ‘Part III.’
The effect of this would be that laws inconsistent with fundamental rights would be valid qua these persons. These citizens of India are not entitled to the protection of Article 14 (equality), Article 15 (prohibition of discrimination on basis of religion, caste, race or place of birth), Article 16 (Equality of opportunity in matters of public employment and reservations), the fundamental rights under Article 19 including the right to free speech and the right to life and liberty under Article 21. They are not entitled to the freedom of practice and propagation of religion under Article 25. They are also not entitled to protection of interests available to minorities under Article 29 and 30. The non-State subjects, who are citizens of India, who live in Jammu & Kashmir by virtue of Article 35A, are denied these protections. The pre 2002 position in relation to daughters who marry outside the State that they would lose their right of inheritance is based on the authority to discriminate against citizens of India, between citizens of India and State subjects which Article 35A confers.
Should a provision like Article 35A which exists only because of Article 370 have place in any civilized society? It is oppressive against citizens of India. It is discriminatory and violative of fundamental rights. Article 35A was inserted in 1954. On a bare reading, it violates the basic structure of the Constitution. I wonder if its constitutional validity will be challenged at some point of time.
Posted on 03 December, 2013, No Comments Comments admin
Two years ago, the National Advisory council headed by Mrs. Sonia Gandhi submitted a draft bill known as ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations ) Bill’. This draft Bill was put on the net for consultation. I had written a strong critique of this bill amongst others on the ground that ‘law and order’ and ‘public order’ are State subjects and that the Parliament by enacting such a law would be encroaching on the domain of the States. The Bill was highly discriminatory since it discriminated against the majority and minority on basis of birth marks. It gave unguided power to authorities proposed to be created and loaded the redressal and accountability mechanism in favour of one community against the other on the basis of religion. In the meeting of the National Integration Council held in 2011, Chief Ministers cutting across party lines opposed this Bill on the ground that it would be destructive of the federal structure of the Constitution.
It appears that on the eve of the Lok Sabha elections, in order to polarize the country on communal lines, the Ministry of Home Affairs has again written a letter to the Sate Governments enclosing therewith revised draft of the Bill. There hasn’t so far been adequate consultation with the stakeholders.
Yesterday on 2nd December 2013 Dr. J Jayalalithaa, Chief Minister of Tamil Nadu has written a detailed letter to the Prime Minister voicing her strong opposition to this draft. The AIADMK leaders mentioned this in the All Party Meeting convened by the Government on the eve of the Parliament winter session. The Tamil Nadu Chief Minister has reiterated her opposition to this Bill. The letter mentions that ‘law and order’ and ‘public order’ are State subjects and several provisions of this Bill encroach on the federal structure of the Constitution. She has further mentioned that the provisions of this Bill were vague and could be subjected to serious abuse. She believes that the changes in the earlier Bill are cosmetic at the best and are highly objectionable. She reiterates that the words “ hostile environment” has been defined as “ creating an intimidating , hostile or offensive environment.” This itself could be subjected to different interpretations. She has stated that the manner in which Public Servants also could be targeted under this Bill may render their functioning almost impossible while trying to grapple with communally sensitive situations. The authorities sought to be empowered under the new draft could interfere in the functioning of the State Governments thereby undermining the relevance of the elected Governments. She concludes by stating that “However, the Government of India has been increasingly taking ill-advised, counter-productive and unilateral approach of attempting to create top-down structures and parallel authorities that encroach upon the constitutional domain of the State Governments”.
Even though the draft Bill has not been made public as yet, the Tamil Nadu Chief Minister has done well to initiate a Public debate on this issue. Her views appear to be logical, reasonable and in consonance with the federal structure of the Constitution.