The Cradle of Discrimination: Article 35A

31 Jan 2018 15:38:35

 


 

                                         

 

 

 

Yashraj Singh Bundela

 

 

Article 35A of the Constitution (Application to Jammu and Kashmir) Order, 1954, is the root cause of discrimination between Permanent Resident Certificate holders and Non- Permanent Resident Certificate Holders in the State of Jammu and Kashmir.  It was introduced in alleged exercise of power provided under Article 370 (1) (d) of the Constitution of India, which says that any provision of the Constitution of India other that Article 1 and Article 370 can be extended to the state of Jammu and Kashmir with exceptions and modifications through Presidential order after obtaining the concurrence of the State Government.

 

Though under Article 370 (1)(d) power is given to the President to make exception and modification in a constitutional provision while extending it to the State of Jammu and Kashmir, but the President could not have added a new provision such as Article 35A in the garb of “exception and modification”, thus entering into the legislative domain and formulating something which our constitution makers could have never envisaged. Therefore the procedure adopted for the incorporation of Article 35A through presidential order is certainly questionable and deserve a judicial scrutiny.

 

Article 35A is added in the Part III of Constitution (Application to Jammu and Kashmir) order, 1954. In Constitution of India, Part- III deals with fundamental rights. Article 35A  gives protection to any law in the State of Jammu and Kashmir, which is in existence or enacted subsequently, defining as to who constitute Permanent Residents in the State of Jammu and Kashmir or which confer any special rights and privileges or which imposes any restriction on Non- Permanent Residents, in relation to employment under the State Government, acquisition of immovable property in the state, settlement in the State, scholarship or any other aid which state government provides in the State of Jammu and Kashmir, from judicial scrutiny even if it violates fundamental right. Thus leaving people living in the state of Jammu and Kashmir and suffering discrimination for past several decades’ remediless. Which defeat the foundational principles set out in the preamble of the Constitution of India by denying;

“….JUSTICE, Social, economic and political;

LIBERTY, of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;…”   

Article 35A creates two kinds of Citizen in the State of Jammu and Kashmir, one who is Citizen of India and Permanent Resident Certificate Holder and thus entitled to enjoy all the rights and privileges provided in the Constitution of India and can move to court if his fundamental rights are violated. On the other hand those citizens of India who are Non-Permanent Resident Certificate holder and thus cannot enjoy rights and privileges as available to any Citizen of India in any other State or Special rights and privileges available to Permanent Residents Certificate Holders in the State of Jammu and Kashmir, thus create a class discrimination.

 

Article 35A gives unlimited and unchecked power in the hands of Jammu and Kashmir State legislature to define and to lay down the conditions for becoming a permanent resident in the State of Jammu and Kashmir. The legislature of Jammu and Kashmir made extensive use of this provision by formulating a discriminatory provision in the form of Section 6 of the Constitution of Jammu and Kashmir, which define as to who can be termed as Permanent Resident in the State of Jammu and Kashmir. The legislature of Jammu and Kashmir and Government made extensive use of Article 35 A and of section 6 of the Constitution of Jammu and Kashmir, by laying down the pre-condition of Permanent Resident Certificate for obtaining any benefit arising out of any state legislations or rules or regulations governing the basic needs of life, whether its employment in any State services, ownership of any immovable property, education or admission in any professional courses,  etc.

There are plethora of judgments of the Hon’ble Supreme Court of India which declare that the Power of Judicial Review of Constitutional Courts i.e., Supreme Court or High Court as available under Article 32 and  226  read with Article 13 of the Constitution of India is part of basic structure of the Constitution; meaning thereby it cannot be curtailed by any  legislation including Constitutional Amendment by Parliament or by State legislative assemblies in case of state legislations. Any act of Parliament or legislative assemblies, which tend to take away the power of judicial review of the Court has been declared as null and void by various judicial pronouncements. But unfortunately the provision such as Article 35A which out-rightly takes away the power of judicial review continue to exist  in our constitutional scheme of things even after 68 years of India  becoming  republic.  Article 35A which is at the root of violation of fundamental rights continue to dictate the life thousands of people in the State of Jammu and Kashmir who are still deprived of their basic needs of life such as food, shelter, employment, education, etc. The provision of Article 35 A not only deprive a class of people living in the State of Jammu and Kashmir who are not provided with the Permanent resident certificate but are citizens of India and living in the State for past more than 60-70 years of their fundamental rights as are promised by the Constitution of India which is supreme law of the land but also from the rights and privileges as enshrined in International Human Rights instruments such as, UN Charter, Universal Declaration of Human Rights, ICCPR, ICESCR etc., which India is obliged to follow for having ratified them.

 

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