Op­po­si­tion To Ar­ti­cle 35A Has Merit

Ar­ti­cles 35A, 370 have fos­tered alien­ation which gets ex­ploited by sep­a­ratists, ter­ror­ists

The Day After - - CONTENT - By DANFES

With the Supreme Court in­di­cat­ing that the con­sti­tu­tion­al­ity of Ar­ti­cle 35A would be ex­am­ined by a con­sti­tu­tion bench of five judges, it pro­vides an op­por­tu­nity to ap­proach this is­sue, as also Ar­ti­cle 370, from a le­gal per­spec­tive, re­moved from the po­lit­i­cal and at times pas­sion­ate dis­cus­sion, which have been the norm in this re­gard.

Any dis­cus­sion about Ar­ti­cle 35A is in­com­plete with­out go­ing back in time by al­most a cen­tury to 1927 when Hari Singh, then ruler of the Jammu and Kash­mir passed an or­der, which pro­vided that state sub­jects would be pre­ferred to out­siders for em­ploy­ment in gov­ern­ment ser­vices. It pro­vided for three classes of state sub­jects de­pend­ing on the ba­sis of cer­tain pa­ram­e­ters: year of birth, or be­ing per­ma­nent res­i­dents, or hav­ing ac­quired land un­der a ray­at­nama of the state. By virtue of this or­der, out­siders were not al­lowed to pur­chase land in the state or ap­ply for state gov­ern­ment em­ploy­ment. This was fol­lowed by an­other or­der is­sued in 1932, which pre­scribed cer­tain cri­te­ria for for­eign na­tion­als to be el­i­gi­ble as state sub­jects on ful­fill­ing of cer­tain con­di­tions like ac­quir­ing land un­der an ijazat­nama and on ob­tain­ing a ray­at­nama af­ter ten years’ con­tin­u­ous res­i­dence in the Jammu and Kash­mir state. Sim­ply put, these pro­vi­sions left some scope for non-state sub­jects or out­siders to ac­quire land and be treated as state sub­jects.

How­ever, what is in­ter­est­ing to note that Jus­tice AS Anand in his book “The Con­sti­tu­tion of Jammu & Kash­mir” has re­ferred to cer­tain doc­u­ments/writ­ings

which in­di­cates that these or­ders ap­par­ently ben­e­fited the peo­ple of the Jammu re­gion rather than those in Kash­mir, lead­ing to dis­en­chant­ment in the Val­ley, but strangely, Ar­ti­cle 35A, which is de­rived from these or­ders, is to­day be­ing sup­ported by those who were ap­par­ently dis­crim­i­nated against. And here lies the catch in the en­tire episode, as any dis­cus­sion delv­ing into the in­tri­ca­cies of Ar­ti­cle 35A is stonewalled by rais­ing the ban­ner of Ar­ti­cle 370.

KNOW THE LAW

The state of Jammu and Kash­mir be­came part of the In­dian Union in Oc­to­ber, 1947 by way of an Agree­ment of Ac­ces­sion. What needs to be em­pha­sized is that this agree­ment was no dif­fer­ent from the ones signed by the other 561 princely states, mean­ing that the ac­ces­sion was com­plete in all re­spects and ir­re­versible. Ar­ti­cle 370 was brought into the Con­sti­tu­tion given the cir­cum­stances pre­vail­ing in those days, but un­like other pro­vi­sions of the Con­sti­tu­tion, this was kept in Chap­ter 21 deal­ing with “Tem­po­rary, Tran­si­tional & Special” pro­vi­sions, mak­ing it clear that Ar­ti­cle 370 was only a tem­po­rary and tran­si­tional pro­vi­sion. Though the pro­po­nents of the con­tin­u­ance of Ar­ti­cle 370 over-em­pha­size the “Special” as­pect, the fact re­mains that the Con­stituent Assem­bly was clear that it will be a “Tem­po­rary” and “Tran­si­tional” pro­vi­sion. Un­der this Ar­ti­cle, the Pres­i­dent of In­dia is au­tho­rized to ex­tend pro­vi­sions of the Con­sti­tu­tion to Jammu and Kash­mir with mod­i­fi­ca­tion or al­ter­ation by way of a Pres­i­den­tial Or­der in con­sul­ta­tion with the state gov­ern­ment.

To this end, the first Pres­i­den­tial or­der was is­sued in the year 1950, ex­tend­ing ap­pli­ca­bil­ity of cer­tain pro­vi­sions of our Con­sti­tu­tion to the state. The sec­ond was is­sued in 1954 and it was through this or­der that Ar­ti­cle 35A, a new pro­vi­sion, was added to the Con­sti­tu­tion af­ter Ar­ti­cle 35. In other words, a Pres­i­den­tial Or­der brought about an amend­ment to the Con­sti­tu­tion with­out fol­low­ing the elab­o­rate pro­ce­dure laid down in Ar­ti­cle 368 and Ar­ti­cle 35A got a back­door en­try to our Con­sti­tu­tion. What is even more sur­pris­ing is that you will not find this Ar­ti­cle af­ter Ar­ti­cle 35 in any of the bare acts of the Con­sti­tu­tion, as is re­quired when a Con­sti­tu­tional amend­ment is brought about. For ex­am­ple, when “Right to Ed­u­ca­tion” was brought in, it was given place be­low Ar­ti­cle 21 as Ar­ti­cle 21A, but in this case, the text of Ar­ti­cle 35A is not to be found in the main body of the

The pro­vi­sions of Ar­ti­cle 35A are also con­tained in Ar­ti­cles 6 to 10 of the Jammu and Kash­mir Con­sti­tu­tion, even though by virtue of Ar­ti­cle 5 of the Con­sti­tu­tion of In­dia, all res­i­dents of Jammu and Kash­mir are cit­i­zens of In­dia en­joined with var­i­ous rights but not vice versa

Con­sti­tu­tion but in the Ap­pendix! What is wor­ri­some is that a pro­vi­sion like Ar­ti­cle 35A has re­ceived lit­tle or no aca­demic at­ten­tion un­til re­cently.

TRAV­ESTY OF CHAP­TER III

Ar­ti­cle 35 forms part of the “Fun­da­men­tal Rights” chap­ter, and Ar­ti­cle 35 A hav­ing been added af­ter this pro­vi­sion ipso facto be­comes part of the same chap­ter, but iron­i­cally, in essence and sub­stance, it cur­tails the fun­da­men­tal rights of a vast num­ber of cit­i­zens of our coun­try. In a nut­shell, Ar­ti­cle 35A is noth­ing but a re­stricted ver­sion of the 1927 & 1932 Or­ders em­pow­er­ing the state leg­is­la­ture to de­ter­mine who are per­ma­nent res­i­dents of the state and con­fer on them var­i­ous special rights and privileges while im­pos­ing re­stric­tions on oth­ers in re­spect of em­ploy­ment, the ac­qui­si­tion of im­mov­able prop­erty, set­tle­ment in the state, right to schol­ar­ships and such other forms of aid as will be de­ter­mined by it.

The pro­vi­sions of Ar­ti­cle 35A are also con­tained in Ar­ti­cles 6 to 10 of the Jammu and Kash­mir Con­sti­tu­tion, even though by virtue of Ar­ti­cle 5 of the Con­sti­tu­tion of In­dia, all res­i­dents of Jammu and Kash­mir are cit­i­zens of In­dia en­joined with var­i­ous rights but not vice versa. Af­ter a pro­tracted le­gal bat­tle, in 2002, a full bench of the Jammu and Kash­mir High Court held that even af­ter mar­riage to out­siders, such women will not lose out on their per­ma­nent res­i­dent sta­tus; but ef­forts were made by the then rul­ing dis­pen­sa­tion to nul­lify the same though a bill that was passed in a record six min­utes! Af­ter much protest from the BJP, then in the op­po­si­tion, as also its then coali­tion part­ner, the Congress, the bill was with­drawn. Though the 2002 judg­ment gives some hope women who have mar­ried out­side the state, their chil­dren still do not have any rights as they are not in­cluded in the per­ma­nent res­i­dent cat­e­gory. In fact, one of the pe­ti­tions pend­ing be­fore the Supreme Court high­lights this as­pect of dis­crim­i­na­tion and it is time that this is­sue is set­tled once and for all.

HYPOCRISY OF J&K CON­STI­TU­TION

In re­cent years, we have been wit­ness to out­rage against the vi­o­la­tion of hu­man and con­sti­tu­tional rights of de­prived sec­tions of so­ci­ety all across the coun­try. How­ever, the plight of about 200 Valmiki fam­i­lies who were brought from Pun­jab to Jammu and Kash­mir in 1957 to be em­ployed as Safai Karam­charis have re­ceived no at­ten­tion from the oth­er­wise vol­u­ble ac­tivists, or for that mat­ter, the me­dia. These fam­i­lies were promised “per­ma­nent res­i­dent sta­tus,” but 60 years on, their sta­tus is still in limbo. Even though many mem­bers of these fam­i­lies have the ed­u­ca­tional qual­i­fi­ca­tions re­quired to ap­ply for gov­ern­ment em­ploy­ment, they are not en­ti­tled to do so ex­cept as Safai Karam­c­ahris. They can vote for the Lok Sabha elec­tions but not for lo­cal bod­ies or the Jammu and Kash­mir leg­is­la­ture. Above all, the colony that was al­lot­ted to them has still not been reg­u­lar­ized af­ter all these years.

An­other glar­ing in­stance of dis­crim­i­na­tion per­tains to the refugees from West Pak­istan who mi­grated to Jammu and Kash­mir af­ter par­ti­tion. All those who came from Pak­istan dur­ing par­ti­tion and set­tled in other places of the coun­try were granted all the rights

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