By Daya Sagar
Many may not be knowing that in Independent India only 21 soldiers have been decorated with Param Vir Chakra and out these greats 15 soldiers are those who have laid down their lives fighting on LOC/ IB in J&K and were non permanent residents. Even families of these soldiers decorated with PVC and who have made extreme sacrifices can neither have a house of their own in J&K nor their children / family members can join J&K government service as well as J&K Government rum medical or engineering college since no local government has cared to accommodate them as permanent residents or even issued any special executive orders relaxing local restrictions in service / admission to J&K government institutions for their families. .
How would extending such gestures to a very few decorated families would change the demography of J&K or dilute the identity of people of J&K (Kashmiris) is not understood . What special rights the people of J&K have when they cannot even honor those who lay down their life for J&K people in spite of the fact that it could be done by executive orders and / or by using Sections-8 and 9 of J&K Constitution ? Will Dr. Farooq Abdullah reply this?
Government Medical Colleges in J&K do not have adequately experienced and qualified faculties of super specialties and even the doctors from other states are not recruited due to local Permanent Resident related laws that could be amended without any difficulty but are not amended, why? But it has not been done simple to show that J&K is distantly related to India.
Even Super Specialty Hospital attached with Jammu Medical College has become a white elephant and patients have to rush to outside state or local private clinics . Why relaxations are not made and Permanent Resident law is retained as a block in the way for taking welfare actions in the interest of common people of J&K? What special is this ? In case non permanent resident professors can be recruited in Jammu University why cannot non permanent resident doctors be recruited in medical colleges simply by issuing executive orders for what the provisions/ way out exits constitutionally as well ?
Here too it could be alleged that the powerful Kashmir valley leadership has used the PR law or existence of Art 35A just to project that J&K is distantly related to India. Why not make corrections atleast now?
Even when Apex court has made some observations and even suggested for making corrections through executive and constitutional measures but that has not been done even after lapse of nearly 3 decades. Apex court has in a way expressed helplessness for granting relief to 1947 refugees from West Pakistan pointing out that Art 35A allows J&K Govt / Legislature to discriminate between Indian citizens by violating even fundamental rights as contained in Part III of COI while delivering a judgement in Bachan Lal Kalgotra vs State Of Jammu & Kashmir And Others on 20 February, 1987
With due regards to ultimate opinion of the Apex court it could be said that the subject matter needs more close examination as regards the ‘genuineness of existence of Art-35A’ than the contents of this article .President of India drawing authority from Art 370 (1-d) of Constitution of India to add some new article in the Constitution of India like Article 35A and issuing the Constitution Application ( to Jammu and Kashmir ) order of 1954 C.O. 48 containing Section-4(j) adding a new Art by the name Art 35A after Article 35 in constitution of India in a way puts the very existence of Art 35A and its birth under a question mark .
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 by incorporating some provisions unfair to some citizens of India in the shape of Art35A but now the question is on constitutional validity of the manner in which Art 35A has been added in the COI as a new article .
Hon’ble supreme court has so far held the laws and provisions made in J&K that discriminate between citizens of India who are Permanent Residents of J&K and those who are not PR of J&K valid for survival 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 simply with the concurrence of the Government of the State of Jammu and Kashmir so as to add a new article in the Constitution of India by the name Article35A after Article 35 of COI since such action is an amendment of the COI and 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? Apex Court has on 17th July 2017 already referred references in Writ Petitions (Civil) 722/2014 to a larger 3 Judge Bench on validity of Article 35A.
Hope the constitutional technicalities will surely attract the attention of the apex court worth referring to a larger constitutional bench the text of C.O. 48 where it says :- “After Article 35, the following new article shall be added, namely:-35A.”
Concluded
( Daya Sagar is a Sr. Journalist and a social activist can be reached at [email protected])
