It is time to reject those who plead Art35A is to preserve muslim majority face of J&K ( Kashmir Valley)

21 Aug 2017 13:20:39

Daya Sagar

To be brief Art 35A  has been added as  a new article after Art 35 in the Constitution of India simply by  an Order of the President  Constitution (Application to Jammu & Kashmir ) Order 1954 C.O  48 of 14 May 1954    said to have been issued by the President in  exercise of the powers conferred by clause (1) of article 370 of the Constitution ( Temporary provisions with respect to the State of Jammu and Kashmir) , with the concurrence of the Government of the State of Jammu and Kashmir. This article (Art 35A)  is not available in the main body of constitution of India and is available in the text of Constitution (Application to Jammu & Kashmir) order 1954 dated 14 May 1954 C.O.1954 that is attached with Constitution of India as   Appendix-I.

The Presidential order says:  (4j) After Article 35, the following new article shall be added, namely:

“35A : -.Saving of laws with respect to permanent residents and their rights.

Question is where the new article, namely 35A has been added? The answer that could be and should be/ is   the “new Article 35A” has been added in the Constitution of India.

Further Question is under what authority the President has added a new Article in Constitution of India which amounts to amending the Constitution of India? The plea commonly given is that it has been under the powers conferred on the president by Clause- 1 ( to be specific Clause 1-d ) of Article 370 of COI. But this plea does not stand to technical test since Clause -1d of Article 370 refers to only to the modifications  exceptions of existing provisions of Constitution of India and hence adding a “new article” does come in the  scope of said clause  since ‘adding a new article constitution’  amounts to amending the constitution of India and that could be done only by Parliament of India exercising the constituent power as  slated in Art-368 of Constitution of India. Hence, in that way this article  35A is non existent from constitutional point of view    and  hence constitutionally no cover ‘ shelter’ is available   to any law /act made in J&K that violate the fundamental rights of some citizens of India as are  granted in Part III of COI.

Questions have been raised  in the past also by some people on the  validity of the laws / acts /orders of J&K State that discriminate amongst the citizens of India  stating that such  bad laws / orders made  in favour of Permanent residents of J&K giving them exclusive rights on owning land, joining state service , receiving aid from state,  voting for and entering J&K legislature  , studying in state government  owned professional colleges and discriminating not only some  Indian citizens in general ( not falling in the class Permanent Residents of J&K as defined in section-6 of J&K Constitution )  but as also even with  some of   the Indian citizens who come in the category of  permanent residents of J&K   being State Subjects of Class-I & Class-II of times of Maharaja Hari Singh  like denying rights to 5300 POJK DP Families of 1947  even their being Permanent Residents of J&K  who are not staying  in J&K while granting much disputed one time settlement of a meagre amount of Rs.5.5 Lakh / family under PM Development package 2015 and denying  fundamental right / human right  of choosing  a life partner of choice to  women permanent residents of J&K being  against the spirit of constitution of India.  No doubt such like  allegations  have been appreciated   in principle even by the Apex Court ( 1987)  but courts have felt helpless for giving a relief since the  discriminations  have so far been taken  under the shelter of the so called Art 35A. Hon’ble Supreme Court of India had in the case of Bachan Lal Kalgotra vs State Of Jammu & Kashmir And Others -   Writ Petition No. 7698 of 1982   2 SCC 223  pertaining to  1947 West Pakistan refugees settled in J&K  -  on 20 February, 1987 made observations in this regard with  particular reference to Art35A of Constitution of India. So, going by earlier understandings one may fear that any challenge on discrimination  grounds   could become victim of political game plans. Only point worth challenging it before Apex courts could be genuineness of very existence of this article and that  it what has now   disturbed the political and social elite class  of J&K ( Kashmir Valley to be specific)  who have all these years taken undue  advantages out of the controversies raised  like accession and merger, nationalities and  Kashmiri aspirations  in a way by black mailing the Delhi governments that have all these years depended upon only one class of ‘consultants’.  It is a question of very existence of Art35A that has been put to challenge now and has disturbed the Kashmir Valley centric leaders so much.

Article 35A  ‘of’ Constitution of India is now being  described by ‘mainstream’ political leadership of J&K whose core leadership belongs to Kashmir Valley as special provision ( some say even Status ) granted to the State of Jammu & Kashmir by the Union in 1954 in recognition of the  people of the State (that was a muslim majority state in 1947) having rejected the religion based two nation theory and opted for India Dominion and in the absence of such like provision the demography of the State could be changed, to be specific muslim majority character of J&K ( Kashmir Valley).  No doubt such claims do not stand to the technical reasonings in terms of Indian Independence Act 1947 but do reflect the mind set of those who vouch for this article not for the real good of their people but for only keeping the issues of 1947 accession of J&K related controversies (directly or indirectly) live to  benefit their ambitions for remaining in the seat of governance riding on region-religion based  controversies. So the people of J&K State will have take care of their values themselves and reject those who are trying to cultivate ideologies like muslim majority face of J&K and have been now exposed for their using provisions like Art35A more for keeping the Indian state of J&K lost in controversies than using these for betterment of the people of the state..

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