By Daya Sagar
Why discriminatory laws have survived even after independence in the J&K even under the garb of provisions ‘enshrined’ in’ Article 35A’ of Constitution of India inspite of there being provisions available in J&K Constitution (Section-8 and 9) and even after there were some advisory notes made by the Supreme Court of India could be valid question.
A humble debate was initiated by me in 2009 on Art 35A of Constitution of India pointing out that going by the text of CO 48 of 1954, article 35A ‘of’ Constitution of India is not a modification of some article or modification or part of Art 35 but it is all together a new article added in Constitution of India after Art 35 through a Presidential order (executive order ) and so ‘even’ the birth / the very existence of this article comes under a question mark.
Only answer that appears worth considering could be that political leadership that has been enjoying the confidence of Delhi governments / leaders has been working with the strategies that could project to the other world J&K as a state different than other Indian states to the extent that even some better provisions have not been extended to common people of J&K by those who have been taking pride in ‘Vision Nya Kashmir’ as well as claiming to have obtained special welfare law concessions.
In this regard the denial of basic human rights to choose a life partner of choice even to a woman Indian citizen who is a Permanent Resident of J&K could be quoted what to talk of those who are not permanent residents of J&K as defined in Section-6 of J&K Constitution. In case a woman Permanent Resident of J&K marries a person from Punjab or UP her husband & children shall not be having Permanent Resident Status under the present laws. Sections 8 and 9 could be well used atleast for removing this discrimination but even that has not been done. It may hurt some but it will not be wrong to say that over last seven decades Delhi has trusted only Kashmiri leadership and the Kashmiri leadership has instead preferred to keep J&K involved in controversies of Nationalities and citizenship. This way it could be said that Art 35A has been used less for the benefit of Indian citizens living in J&K but more for indirectly harming them.
Article 35A of Constitution of India has been ‘added’ in the Constitution of India simply by a Presidential order {The constitution (Application to Jammu & Kashmir) Order, 1954 CO 48 } and not through the channels of constituent power enshrined in Art 368 of Constitution of India by Parliament of India . Instead it is taken as added in COI simply by a Presidential order said to have been issued under the provisions Art 370 (1-d) of Constitution of India with the concurrence of state government. Hence Article 35A is a new Article added in Constitution of India after Article 35 not by a valid constitutional amendment under Art 368. No doubt it has remained unquestioned for more than 6 decades.
Adding a new article in constitution is an act of amending the constitution and cannot be taken refuge under sub clause (d) of clause (1) of Article-370 of Constitution of India, as has been the case with Article 35A of Constitution of India , since the scope of this clause ( 370 1d) is limited to only such of the other provisions of the Constitution of India that already exist in the Constitution of India where as by constitution application Presidential order of 1954 C.O. 48 a new Article 35A has been added in constitution of India (COI ). And in case it is a new Article by is it not mentioned in the main body of the Constitution of India and is included in the Appendix -I only ? May be the ‘authors’ of this article were themselves not sure about it’s constitutional validity.
Although this aspect has not for about six decades attracted the attention of experts, but now since the possible constitutional inadequacies have been pointed out, adding a new article in the constitution can’t be taken as simply nominating some exceptions and modifications with respect to some provisions of the Constitution of India in relation to the Indian state of Jammu & Kashmir using the procedures/ provisions contained in Art-370 of COI.
The Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 that is said to have been issued in exercise of the powers conferred by clause (1) of Article 370 of the COI, by order of the President, so as to add a ‘new’ Article 35A after Article -35 , is unconstitutional to the extent it says :-“4 (j) : Part-III. After Article 35, the following new article shall be added, namely:-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,………….., 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.” ….
Better Mehbooba Mufti ji rises above minor political ambitions and regrets what she has said on this 28th July regarding discussions and legal reviews that have been initiated as regards “Art 35A” including matters before Apex court.
To be continued
(Daya Sagar is a Sr. Journalist & a social activist can be reached at [email protected])
