Better wait for the decision of Apex court on Art 35A and in the mean time undo some wrongs Kashmir valley dominated political leadership still have fair opportunity to apply corrections

30 Aug 2017 11:52:39

Daya Sagar

The Permanent Resident of J&K Law Constitutional Provision (commonly referred as State Subject Law) of Indian state of Jammu & Kashmir is more under discussions after some petitions have been filed in  High Courts  and Supreme court of India. To be brief the common understanding has been that the this law  (Permanent Resident of J&K status Law) discriminates between citizens of India as regards owning immovable assets in J&K, seeking government jobs in J&K, obtaining  education from J&K Government owned professional colleges and  voting for & entering into J&K Legislature  to the extent of violating the fundamental rights of some citizens of India as granted by Constitution of India (COI) under articles  like 14 (right to equality),15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth ),16 (Equality of opportunity in matters of public employment) ,19-c (to reside and settle in any part of the territory of India), 21A ( Right to education …  Ins by the Constitution (Eighty-sixth Amendment) Act, 2002, s.) etc. Whereas,  facts are not so simply so. No doubt those Indian citizens who come in the category of the Permanent Residents of J&K are today enjoying preferential treatments in J&K over other Indian citizens (non Permanent Residents of J&K) even violating the fundamental rights of other Indian citizens but the safe guards to local discriminatory provisions as incorporated in J&K Constitution { (Section-51 -  Qualifications for membership of the Legislature); (Section-127 -  Transitional provisions); ( Section-140-  Elections to the Legislative Assembly); (Section-157(2 & 3) Repeal and saving of laws and rules; Section-10 (The permanent, residents of the State shall have all the rights guaranteed to them under the Constitution of India), Section- 19(a,b,d). Right to work and to public assistance in certain cases ( Permanent resident specific), Section-20a (to secure to every permanent resident the right  to free education up to the University standard)  have not been so far held void under the shelter of   “Article 35A  ‘of’ Constitution of India even when some of the Acts of Legislature and policy orders of J&K Government are discriminating even amongst the indian citizens who are the permanent residents of J&K like Male Permanent Residents  and Female Permanent Residents of J&K even when  Section-22-d of J&K is in place  (Right of women:-The  State shall endeavour to secure to all women-   (d) the right to full equality in all social, educational,  political and legal matters;) and  between the POJK DPs Permanent Residents of J&K staying in J&K and those staying in Punjab or UP.  

Art35A   had been so far put under question mark for it’s  being  unconstitutional and void on the ground that it damaged the basic structure of the Constitution of India by allowing  the Indian state of J&K to incorporate order  some provisions unfair to some  citizens of India  but  now the question is before the Apex court is on constitutional validity of the manner (pleading that it is surely added as amendment of constitution of India by unduly over stretching the authority conferred on President of India under Clause 1-d of Article 370 of constitution of India)  in which  Art 35A  has been added in the COI as a new article.

Hon’ble supreme court has so far held valid for survival the laws and provisions made in J&K that otherwise discriminate between citizens of India who are Permanent Residents (PR) of J&K and those who are not  PR of J&K  under the cover of ‘Art35A’ of Constitution of India even if they  violate the fundamental rights of some other Indian citizens as granted in part-III of COI .But the question that was initiated by persons like the writer in 2009 is a question on the constitutional legitimacy of even the ‘ birth’ of Art35A and there exist all reasons  for taking up this issue before the Apex Court for consideration by a larger Constitutional bench pleading that Clause (1) of Art 370 of Constitution of India confers no power on President of India  to amend the Constitution of India  so as to add a new article in the Constitution of India since only Parliament of India can do so by using the constituent power vested in Art 368 of Constitution of India.

 Hence before discussing good and bad of the text of Art-35A, the first need is to examine whether this Article even constitutionally exits? More so the first question is not of abrogation of article 35A but is of more of its legitimate existence.

 It is not wise   for some public men to throw challenges on the Courts for influencing an ultimate decision on a matter lying before the court for examination.  “One ” can influence a political decision by public pressure but surely neither one should nor one  can influence a judicial decision with political pressures.  So, let the  constitutional technicalities  be examined and decided by the larger constitutional bench as regards  the text of C.O. 48 where it says :- “After Article 35, the following new article shall be added, namely:—35A.” and  Kashmir valley political leadership  as well as the ‘civil society’/ trade associations / professional associations / should wait for the decision of the Apex court  instead of labelling Art35A as a ‘gift’ to Kashmir Valley people from government of India as a good will gesture for the “muslim majority” princely state having vouched for joining India in 1947 and as a tool to preserve muslim majority  demography of state.

Better the Kashmir valley leadership should in the meantime put pressures on those who are in power and are in legislature to make corrections to the neglects of the past and unfair use of the cover so far taken under “Art35A” so that atleast  the allegations against the local governments legislatures of the past   that Art35A has been  more used to projects J&K as a state distantly related to India than it has been used for the betterment of “ permanent” residents of J&K  are weakened so some extent.

National conference had called for a special session of J&K Legislative assembly before 29th August for discussions inview of the  sub judice questions of Art35A, it will be  better for NC to  press for the said demand even after 29th August but this time more for making corrections where ever required  through legislature  as regards (i) undoing unfair treatment being given to the woman permanent residents of J&K, (ii) the unfair treatment being given to 5300 POJK displaced families of 1947  in view of THE Jammu and Kashmir Displaced Persons (Permanent settlement ACT 1971  ACT No.. X of 1971), (iii) the permanent resident benefits being denied to 1947 refugees from Pakistan who are possessing and cultivation lands in J&K for last more than 6 decades under the provisions of  Notification No.578-C  0/5   1954  of  7.5.1954  (State Cabinet’s decision  No. 9578-C of 1954); (iv)  doing justice with  the families of safai karmcharies  ( about 200 in 1957)  who had come to the rescue of state government in 1957 on the request of the then Prime Minister Bakshi Ghulam Mohd by granting them  rights by issuing executive orders/ if needed by legislative corrections  for taking up jobs in government  other than that of safai karamchari; (v) and showing high order social gesture / gratitude  at least  towards the 15 Param Vir Chakra decorated  non J&K permanent resident Indian soldiers who  fought the enemy on LOC/IB in J&K by  granting them permanent resident rights & gifting lands and government jobs to their families in J&K ; (v) providing  Government Medical Colleges   adequately  with  experienced and qualified faculties of super specialties by relaxing the local Permanent Resident  laws that could be amended without any difficulty. and (vii) the likes of.

The provisions   are available in J&K Constitution & with the J&K government  , the only requirement is of intentions. And by doing so the  J&K leadership ( to be specific Kashmiri leadership)  would be able to cover up their unwise statements as made recently to the extent of saying that  Art35A is for preserving the muslim majority character of  J&K State . Even some well wisher of  “Kashmir valley” centric political leadership like “Mr. Prem Shankar Jha  too have been quoted as having advised  some thing like that ( though in a low tone ) on 27-082017 while they were  in Srinagar that ‘Leadership’ should in the mean time undo the unfair treatment being meted to women PR of J&K.

Will Farooq’s  “United front” convince the present government / legislature for applying corrections? Better do so before the next hearing on the petitions pending before Apex court. If done so, irrespective of what is the decision of the Apex court, the Kashmir valley dominated political leadership would  surely  have some face saving.





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