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| BJP agrees to defend 'unconstitutional' Article 35-A | | Playing with national unity | | Early Times Report
JAMMU, Nov 16: To retain control over petty power, the BJP is prepared to undermine national unity and deprive refugees from Pakistan and children of daughters of the State married outside the State to non-State subjects of their citizenship rights in J&K. In effect, the BJP, which for decades fought against the State's special status and demanded abrogation of divisive, anti-democratic and pro-Kashmir Article 370, has agreed to give unqualified support to the State Government so that it could defend Article 35-A of the Indian Constitution in the Supreme Court, which is scheduled to hear the writ petition against this Article, which was enforced in the State in 1954 to create a high wall between the so-called State subjects and other Indians.
Significantly, it is the Delhi-based NGO, "We the Citizens", which is affiliated to the RSS, has approached the Supreme Court against Article 35-A.
Reports suggest that J&K Government of which the BJP is part has decided to invoke State's special position in the Indian Constitution, the 1952-Delhi agreement, constitutional bench judgments of the Supreme Court and powers vested with President for issuance of the 1954 constitutional order to defend the Article under scrutiny. The State Government will refer to "historical background of J&K" and the circumstances that "resulted in temporary settlement under Instrument of Accession", notwithstanding the fact that the Accession with India was final, full and as per the constitutional law.
The State Government will, according to sources close to it, will also "highlight that J&K had not acceded to either India or Pakistan but owing to 'tribal invasions Maharaja Hari Singh signed Instrument of Accession with certain conditions that were accepted by Governor General of India" and tell the Supreme Court of India that "the immediate object of the Accession, unlike other princely States, therefore, was to make possible and legitimize deployment of troops to the State".
A report in this regard has said: "Though the Instrument conceded powers to Union of India to make laws on defense, external affairs and communication in J&K, yet the attending circumstances of the signing of the instrument and its acceptance sufficiently indicate contemporaneously that a constitutional framework was conceived wherein J&K, unlike other States, was to enjoy a special constitutional position, the (Government) response reads. The Government has referred to clauses 4 and 7 of the instrument and the communication whereby Governor General of India had accepted the Accession, making it clear that dominion of India didn't take J&K's Accession in the manner it treated Accessions by other princely States".
Sources said the J&K Government will invoke Gopalaswami Ayyangar to defend Article 35-A and tell the Supreme Court what he told in the Indian Constituent Assembly in October 1949. A reference to Gopalaswami Ayyangar speech to India's constituent Assembly in October 1949, while explaining the scope of Article 370, will be part of the State's defence. What did Ayyangar say? "You will remember that several of these clauses (of Instrument) provide for concurrence of Government of J&K and these related particularly to the matters which are not mentioned in the Instrument. It is one of our commitments to people and Government of Kashmir that no such addition should be made except with the consent of constituent Assembly which may be called in the State for framing its own constitution…They have committed themselves to a position that an opportunity will be given to people of J&K to decide for themselves the nature of their constitution," Gopalasawmi Ayyangar, Minister of Kashmir affairs told the Constituent Assembly.
The Government, according to reliable sources, will also defend Article 35-A by saying that the "constitutional framework worked between India and J&K that reflected in the Article 370 has its roots in para 4 and para 7 of the Instrument which didn't result in merger of J&K with India but created only a 'temporary settlement' under which Government of India has powers on three subjects, defence, communication and foreign affairs" and that the "State has its own constitution, flag and Prime Minister".
The J&K Government will, in addition, defend Article 35-A by telling the Supreme Court "that subsequent to the Delhi agreement, the constitution (application to Jammu and Kashmir) order 1954 was issued by President under Article 370 (1) (d), superseding earlier order of 1950 and extending application of various provisions of Indian constitution to the State" and that "it also extended part III of Indian Constitution - fundamental rights - to J&K with certain modifications and the Article 35 was extended to J&K with a modification contained in clause 4 (j) of the presidential order in the form of saving clause namely Article 35-A".
Besides, the J&K Government has decided to oppose the plea "We The Citizens" that "after insertion of Clause (22) in Article 366 of Constitution of India in 1971, all Instruments of Accession signed between different rulers of the erstwhile Indian States and the Union of India become inoperative and, therefore, special treatment to J&K under Article 35-A has seized" by telling the Supreme Court that the petition is "legally misconceived, untenable and merit-less".
If what the sources close to the J&K Government has revealed and reports on the response the coalition Government has reportedly prepared to oppose Article 35-A are to be believed, then one can say that the BJP has decided to play with national unity for the sake of power. The BJP must refrain from defending Article 35-A, which is more dangerous than Article 370. Not to do so would be only to vindicate those who say that the "BJP has planned to drive J&K out of India to pamper Pakistan and Kashmiri fanatics". |
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