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| Article 35 (A) is not sacrosanct | | | Omkar Dattatray | 8/2/2019 12:12:27 AM |
| | Much controversial and much talked about but hither to unknown article 35(A) of the constitution of India is no profane, holy, sacred and sacrosanct article of faith but is discriminatory and illegal. Article 35 (A) is not the original article contained in the constitution but is a later insertion to the constitution and had been inserted at the instance of the then Prime Minister Pt. J.L Nehru cabinet and has been added by a Presidential notification of Dr. Rajinder Prasad the then President of India in 1954. The article heaped privileges, power and special status to the permanent residents of J&K and the state of J&K as well. The article is discriminatory from ab-initio and is thus arbitrary and should be scrapped for the best interests of the state and for the strengthening the state-centre relations. But unfortunately unnecessary row and controversy is being created by the vested political interests and Kashmir centric political parties with an eye on the vote bank and their core constituency. Sadly a mountain has been created out of the mole hill and passions and emotions are aroused and all this is being done to portray this issue as a matter of so called faith and identity of Kashmir and its special character which in fact is the root cause and genesis of all the problems of the state including separatism, terrorism and separate identity of this sensitive border state of India. It is the gap and distance between the J&K and the union of India and it is only feasible and proper to do away with this controversial article for the interest of India and J&K. Article 35 (A) gives special rights to the J&K's permanent residents as against the inhabitants of other states of Indian union. It empowers the J&K state legislature to define permanent residents of the state and provides special rights and privileges to those permanent residents. As already said it was added to the constitution through a presidential order 1954 with the then J&K government's concurrence. The root cause of this controversial article lie in 1927 and 1932 notification of Dogra rulers of the princely state of J&K. Article 35 (A) gives special rights to the J&K's permanent residents. As said at the outset Article 35 (A) is discriminatory and is against the basic spirit of the Indian constitution and it makes a special class of citizens in India which is illegal, unlawful and thus this controversial article should be scrapped in order to strengthen the relationship of J&K state with the Indian union and in order to discourage separatism, secession, parochialism and terrorism in J&K with which this part of India suffering right from 1947 and more specifically from 1990. This controversial provision of Indian constitution should be dropped to pave way for the full integration and assimilation of J&K with Indian mainstream and the people and investors of India should be allowed to purchase immovable property in J&K and they should be allowed to apply for state government jobs and scholarships. Article 370 and article 35 (A) creates a state within the state and thus is against the interests of India and these controversial articles should go for the best interests of J&K and India. Article 35 (A) and Article 370 is the mother of all crisis in J&K and thus both should go for the interest of India's integrity and national cohesion. If this article is allowed in the constitution, it will set in a pandora's box as other states of the Indian union will also ask for such special provision and special status and this set a bad precedent and trend and will affect national unity and cohesion. Already Andhra Pradesh Chief Minister Chandra babu Naidu is demanding special status for his state. But now that the article 35 (A) is sub-judice in the Supreme Court of India, the highest court should take a call and should struck down this article and not be influenced by the mob hysteria created by vested and selfish political outfits of J&K. it is hoped that the apex court of India will scrap this article to pave way for the full merger of J&K with India. Article 35(A) should be removed as it is in contravention to article 14 of Indian constitution which deals with equality for all. With Article 35 (A) a non resident is deprived of such rights which are available to the permanent residents of the state. In 1957, the Valmiki's who were brought to the state were given permanent citizenship on the condition that they and their future generations will remain scavengers for the entire life. So these cannot opt for any other profession. Further hairs to woman are not given permanent residents certificates if she marries a man who does not have PRC. Besides due to property ownership restrictions, whole private sector suffers. As already said article 35 (A) is a provision incorporated in the constitution giving the J&K legislature a carte blanche to decide who all are permanent residents of the state and confer on them special rights and privileges in public sectors jobs, accusation of property in the state, scholarships and other public aid and welfare. Article 35(A) mandates that no act of the legislature coming under it can be challenged for violating the constitution or any other law of the land. Thus it is discriminatory ab-initio and thus should be scrapped. Article 35 (A) was incorporated in the constitution on the advice of J.L Nehru cabinet. The controversial constitution (application to J&K ) order 1954 followed the 1952 Delhi agreement entered into between Nehru and the then PM of J&K Sheikh Abdullah which extended Indian citizenship to the state subjects of J&K. Thus J&K inhabitants' posses double citizenship one of J&K and other of India. The presidential order was issued under article 370 (1)(d) of the constitution. The provision allows the president to make certain exceptions, modifications to the constitution for the benefit of J&K state subjects. The parliamentary root of law making was bypassed when the president incorporated article 35 (A) into the constitution. Article 368 (1) of the constitution empowers only parliament to amend constitution. But this root was not followed to add article 35(A) to the constitution and thus this article is wrong insertion from the very beginning. There is a considerable amount of tension in the state of J&K and debate is on throughout the country with the Supreme Court taking up a petition to challenging the validity of the article 35 (A) of the Indian constitution. The constitutional validity of article 35 (A) which empowers J&K legislature to give special rights to the permanent residents has been challenged in the Supreme Court. A batch of writ petitions before Supreme Court challenging validity of article 35 (A) of the constitution which gives J&K assembly legal sanction to provide special privileges to permanent residents has once again become a political flashpoint. The Supreme Court of India was expected to begin hearing on the petition filed against article 35(A) of the constitution this week. The hearing took place from 26th of Feb to 28th of Feb, 2019. Article 35(A) of the constitution protects any law in J&K relating to the definition and privileges of permanent residents from being challenged as discriminatory or unconstitutional. The article has been challenged in the Supreme Court in several petitions which are coming up for hearing for the first time since Aug, 2018 when the matter was postponed in the light of upcoming local elections. Article 35 (A) is discriminatory against women and is thus gender biased. If Kashmiri men marry a non permanent resident, he can bequeath his property to children. However, if a Kashmiri woman who is a permanent resident marries a non kashmiri, her children lose their claims over ancestral property. A non-permanent resident as per article 35 (A) cannot acquire immovable property, vote, seek employment in government or admission to a government aided school in J&K. Charu Wali Khanna's petition challenges article 35(A) on the ground that it is discriminatory against women. In 2002 J&K high court overturned a discriminatory 1965 ruling by the Supreme Court and held that the daughters of a permanent resident marrying a non-permanent resident will not lose the status of a permanent resident of J&K state. But there is still room for further clarification. The full judge bench of the J&K High Court did not elaborate on whether the children of women married to non Kashmiri would also be considered permanent residents who could inherit the property. Incidentally the law that gives state subjects as permanent residents special rights and privileges is a direct import from a 171 year old agreement between first dogra ruler of J&K Gulab Singh and east India company. Article 35 (A) was incorporated under article 370 through a constitutional notification signed by Rajendra Prasad in 1954. It does not have parliament's approval and hence should be dropped from the constitution. Since the matter in the Supreme Court, the court should see to it that the article 35(A) is scrapped in the interest of natural justice and gender equality and the court should not be influenced by political hysteria created in Kashmir by vested political parties. |
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