Daya Sagar Mist
Leave Verdict On Art. 35A To Apex Court & In The Meantime Work For Making Legitimate Corrections Locally
Article 35A, that has so far been taken as valid and legitimate article of constitution of India bestows on the State of J&K / J&K legislature / J&K Government in a way ‘absolute constituent powers’ with respect rights of Indian citizens who are categorised ( by the State ) as permanent resident of J&K in the state of J&K {“35A.
Saving of laws with respect to permanent residents and their rights.—Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,—
(a) Defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) Conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
(i) Employment under the State Government;
(ii) Acquisition of immovable property in the State;
(iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.” ) }.
No doubt there are some other articles in the Constitution of India that provide for special provisions for some classes if Indian citizens like SC/ST where under even the fundamental rights of others may appear violated to some extent but there is no any other provision than Art35A that gives authority to violate the rights of other citizens in totality where it says….. “as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part” {like Article 15
(4)- Equality, 16(4A) – in matters of promotion to any class or classes of posts in the services under the State Article 17 – “Untouchability” is abolished and its practice in any form is forbidden.
Article 19(5) – The rights given to all Indian citizens by articles 19(1) (d) and 19(1)(e) – ‘to move freely throughout the territory of India’ and ‘to reside and settle in any part of the territory of India’, respectively, will not harm the interest of scheduled tribes.
Article 46 – The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, Article 164(1) – In the States of Bihar, Madhya Pradesh and Orissa, along with chief minister and other ministers, there shall be a Minister in-charge of ‘tribal welfare’, who may in addition be in-charge of the ‘welfare of the Scheduled Castes and backward classes’ or any other work. Article 243D – This article assures the reservation of seats in Panchayats, both for men and women of Scheduled castes and scheduled tribes..Article 243T – This article makes the similar provision of seats for SC/ST men and women, in the Municipalities. Article 244 – Assam, Meghalaya, Tripura and Mizoram are excluded from provisions of fifth schedule.
Article 244(A) – It makes provision for Formation of an autonomous State comprising certain tribal areas in Assam and creation of local Legislature or Council of Ministers or both. Article 275 – A provision is made for providing grants-in-aid, out of Consolidated Fund of India, each year for promoting the welfare of the Scheduled Tribes in the State or raising the level of administration of the Scheduled Areas.
Article 330 – It makes provision for Reservation of seats for Scheduled Castes and Scheduled Tribes in Lok Sabha as per the percentage of their population in the states and Union territories. Article 332 – It makes similar provision for SC and ST people, in the Legislative Assemblies of the States. Article 334 – Reservation of seats and special representation to cease after Seventy years.
(As per constitutional amendment no. 96) Article 335- The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. Article 338 – It makes provision for National Commission for Scheduled Castes & Scheduled Tribes. Article 339 – Control of the Union over the administration of Scheduled Areas and the welfare of Scheduled Tribes.
Article 341(1) -The President may with respect to any State/Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.
Article 341(2) – Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. Article 342 – similar provision as above, for Schedules Tribes.
Article 371(A) – Special provisions are made for allowing the people of Nagaland to preserve their socio-religious culture in their state. Article 371(B) – Special provisions made for state of Assam state. Article 371(C) }.
Even leaving aside the controversies on the contents of Art35A w.r.t to non permanent resident citizens of India there is still much more to be discussed as regards the role of the people who have rules J&K and those who aspire to remain in power seats in coming times.
In the recent times pointed controversies/ constitutional anomalies even over the very existence ‘Art 35A’ of Constitution of India (COI) have been aired. The charge is : : Art 35A is a “New Article” and not an existing provision of COI with some exceptions & modifications : Use of Clause -1 sub- Clause –d of Art 370 for amending the Constitution of India to add a new article by the President of India is Questionable.
Going by the ground realities it would not be wrong to say that over the years Art35A ‘of’ constitution of India (COI) has been more used to show ‘distances’ between J&K State and India rather than using it for the real good of even some ‘classified Indian citizens’( Indian citizens defined as the permanent residents of J&K (PR of J&K) in Section-6 of J&K Constitution).
Earlier also there were questions also raised before the judiciary but that were more regarding some ‘good’ and ‘bads’ that were alleged as surviving under the cover of Article 35 A as a provision in the constitution of India . Whereas now since ‘question ’is on the very ‘ legitimate existence’ of Art35A in COI (added in Constitution of India after Art35 simply by a Presidential order and not as an amendment made to the constitution by Parliament using the constituent power as contained in Art 368 of COI) that has been aired and even placed before the judiciary as well as the ‘common’ thinkers, some segments / political leadership in J&K has been so much disturbed that shedding all ethics of wisdom they have been, in a way, even publically found throwing threats on the Apex Court of India in case the issue is subjected to a fair judicial trial.
So, strangely even separatists too have joined them. Wisdom lies in waiting for the decision of Apex court on the very existence of Art 35A and making efforts for return of peace & stability ,
Therefore till the apex court makes verdict on the petitions / questions on the constitutional existence of ‘Art35A’ the civil society of J&K ( Kashmir valley in particular) and PDP-NC- CPM leadership should too in the meantime impress upon the State administration to do whatever good that should have been done to make good the deficiencies that have even disturbed the PRs of J&K / erstwhile State Subjects of J&K as well worth going to courts ( woman permanent residents , POJK1947 times 5300 families living in states other than J&K)
Good and bad of provisions created/ made / ordered in J&K (in relation to fundamental rights of some Indian citizens) under the shelter of Art35A appear discriminating not only amongst some classes of Indian citizens like PRs of J&K and Non PRs of J&K but also among the Indian citizens who are named as PRs of J&K in terms of Section-6 of J&K Constitution before the court have been also placed in the public domain.
Instead of unfairly making attempts (quote: “we have also decided to appeal the democratic voices and all credible sections of the society in the country to understand the dangers ahead and the serious implications of removing Article 35A.
This will be a dangerous move, dangerous for the state and as a country as a whole,”: unquote ) for dragging a purely legal issue/ question into political debates worth further disturbing peace, inter regional oneness and communal harmony in already disturbed state it will be wiser for the socio- political leadership to make efforts for whatever corrections are possible at administrative level / at the level of legislature / even using the short provisions that are available under the Governor rule / President rule.
The subjects for immediate, legitimate and possible corrections could be as regards (1). Rights of “women permanent residents of J&K” regarding ‘choosing a life partner’ (2).
There being no reserved seats for Schedule Tribes Permanent residents of J&K in the Legislative Assembly of J&K although it is there in other Indian states inspite there being Section-23 of JK Constitution (3). the seats in J&K assembly reserved for permanent residents Schedule Caste were 7 when number of total seats for elections was 76, the same should have been increased to at least 8-9 after total was increased to 87 but number is still only 7.(4).
5300 families of 1947 POJK DPs who were State Subjects of princely state of J&K now residing in other Indian states have been in a way disowned by state taking shelter under an Act of J&K Legislature passed in 1971 concerning POJK DPs (5).
Inadequate professional / qualified staff in J&K Medical Colleges and super specialty hospitals since non PR cannot join and health cover to PRs of J&K is inadequate (6) in 2002 J&K legislature deferred the Delimitation of assembly segments to after post 2026 census i.e. after 2031 AD denying proper re-fixation of representative of nearness at to PRs of J&K at right time { THE CONSTITUTION OF JAMMU AND KASHMIR (TWENTY-NINTH AMENDMENT) ACT, 2002 (23rd April_ 2002) ( Section47(3) of J&K Constitution ) (7).
Sections 8 and 9 Of J&K constitution have not been used for 60 years for betterment of PRs. (8) denying PRs of J&K students right to apply against thousands of MS/MD seats in national pool by not contributing a few seats in the National pool PR (9).
Rights for 1947 West Pakistan refugees who are possessing and cultivating lands in J&K as allotted in terms of Government of Jammu & Kashmir Notification No.578-C 0/5 1954 of 7.5.1954 keeping in view that in Maharaja’s times State subject class-III was granted just after 10 years. (10) Rights of rightful “locals” like nearly 200 Valmiki / safai karamchari families who were invited from Punjab by J&K Government somewhere in 1957.
(11) Undoing the controversies over 73rd Constitution to CoI as regards Panchayti Raj institutions and making the J&K Panchayat Raj Act 1989 more near self governance at local levels , rather even better than other Indian states (12) and the like of social rights of at least 15 out of 21 families of Param Vir Chakra decorated soldiers who are from other states but had taken part in wars fought on LOC/IB in J&K that warrant at least making them the PRs of J&K.
(Daya Sagar is a Sr. Journalist & a known analyst of J&K affairs [email protected] 9419796096
Disclaimer: The views in the article are expressed are authors own and doesn’t necessarily reflect the editorial policy of The Legitimate.
