Scrap Article 35A: “It’s Nothing More than a Political Tool”by Opinion Express October 12, 2018 0 comments
Jammu & Kashmir is following a 64-year old law and it has now become a political tool. It is high time the mistake made in 1954 is rectified and the true spirit of Article 19 and 21 are bought to light.
There is an argument projected that the President has no powers to amend the Constitution. The fact of the matter is Article 35A is not a part of the Constitution of India. It’s a part of the Constitution only applicable to Jammu & Kashmir. There is a difference. So, there is no requirement of Parliament amending it,” said Jehangir Iqbal Ganai, Jammu & Kashmir Advocate-General, to a leading national daily in an interview in November 2017. Ganai and many wilfully ignorant people like him have made such desperate attempts to justify the unlawful continuation of Article 35A.
What is Article 35A? Well, it empowers the Jammu & Kashmir State legislature to define permanent residents and gives them special treatment, privileges and rights with respect to employment with the State Government, acquisition of immovable property, settlement in the State, right to scholarships and other such forms of aid as the State Government may provide.
However, the very fact that Article 35A came into being vide a presidential order in 1954 and that it was not added to the Indian Constitution through a routine parliamentary amendment vide Article 368; that it was only added via an annexure by alienating and superseding the parliamentary process; that it owes its origin to Article 370(1)(d), which in turn was always meant to be ‘temporary and transitional’; that it is against the basic ethos espoused under Article 14 of the Constitution which upholds equality before law and equal protection of laws within the territory of India; that it violates the basic structure of the Constitution by flouting Article 14 which prohibits the State from discriminating against persons on grounds of religion, caste, creed or place of birth; that it disenfranchises children born to Kashmiri women who do not marry ‘natives’ — are all glaring examples of the fact that Article 35A has outlived its utility long back. It exists today as one of the worst reminders of appeasement politics and opportunism that was nurtured by India’s erstwhile Prime Minister Jawaharlal Nehru.
Going back in time, it is true that after the Delhi agreement of 1952 under Clause 6, the Union Government, under the aegis of Nehru, in a classic reflection of Panditji’s poor administrative skills and even poorer vision, appreciated the need for special rights that existed vide notifications issued in 1927 and 1932 under the Dogra ruler, Maharaja Hari Singh of Jammu & Kashmir.
It is also true that like any of the 565 princely States, after Jammu & Kashmir’s unconditional accession to the Indian Dominion on October 26, 1947, Sheikh Abdullah took over the reins from the Dogra ruler and in 1949, he negotiated Jammu & Kashmir’s political relationship with New Delhi that led to the inclusion of Article 370 into the Constitution. Article 370 under Part XXI guarantees special status to Jammu & Kashmir, restricting the Union’s legislative powers to only three areas — defence, foreign affairs and communications. After Jammu & Kashmir’s Constitution was framed in 1956, it retained the erstwhile Maharaja’s definition of ‘permanent residents’.
Fears that the removal of Article 35A would lead to the erosion of Jammu & Kashmir’s autonomy and trigger demographic changes in the Muslim-majority Kashmir valley, are a bag of lies, fanned by separatists, armchair activists and those who neither believe in insaniyat (humanism), jamhooriyat (democracy) and kashmiriyat(Kashmir’s legacy of amity). If fears of demographic invasion were indeed true, why is it that in the past 70 odd years, the core demography of the Kashmir valley has remained largely unchanged, even as the Hindu majority in Jammu and Buddhists in Ladakh have all the rights to buy property and settle in the valley?
The uncomfortable truth is that Article 35A is a political tool by politically irrelevant groups like the Hurriyat to keep the embers of separatism burning; though things have improved dramatically under the Narendra Modi dispensation. True, while the voter turnout in the urban local body polls (currently underway and is being held after a gap of 13 long years) was just 8.3 per cent in the Muslim-dominated Kashmir valley, it was more than 70 per cent in Rajouri and Poonch, with Kargil recording an excellent voter turnout of 77.3 per cent. This signals the fact that an average Kashmiri believes in equality and democratic institutions and not on the archaic Article 35A.
Coming back to legalities, does the President of India have the sole power to amend the Constitution through an order? The answer is ‘no’. This was settled in the Puranlal Lakhanpal Vs President of India case of 1961. True, the President, who is the head of the executive, enjoys legislative powers under Article 123 of the Constitution to make an Ordinance when either House of the Parliament is not in Session, but the Ordinance within six months has to be mandatorily passed by the Parliament in order to become a law. The fact that the presidential order in July 1954, that gave birth to Article 35A, was passed unilaterally by circumventing parliamentary procedures by the then President Rajendra Prasad on the mala fide advice of Nehru, has, therefore, always been ‘ultra vires’ to start with!
Again, does Article 370 have the power to add, amend, insert or delete a new Article in the Constitution or amend the Constitution? The answer is again a categorical ‘no’. Sub-clause 2 of Article 368 states that an amendment to the Constitution may be initiated only by the introduction of a Bill for this purpose in either House of the Parliament, post which it has to be approved by no less than two-third majority of all members present and voting of both the Houses put together. Thereafter it has to finally get presidential assent before the amendment eventually becomes legally valid.
Whichever way one looks at the Article 35A issue, that it was extra constitutional from its inception is now well established. We have lived with this 64-year-old mistake foisted upon us by a short-sighted Nehru despite the fact that the Jammu & Kashmir Constituent Assembly was disbanded on January 26, 1957. But it is time now to ensure that the mistake of 1954 is rectified so that the true spirit of Article 19 and Article 21 of the Indian Constitution, which embodies the right to freedom of speech and expression and right to life and liberty, are upheld in the truest sense without creating a stream of second class citizens within the State of Jammu & Kashmir under the farcical garb of greater autonomy. Kashmir is because India is and not the other way round.
(The writer is an economist and chief spokesperson for the BJP, Mumbai)
Writer: Sanju Verma
Courtesy: The Pioneer