Sanjay Raina
Advocate
President people forum Poonch
Hot debate is going on Art. 35-A on media channels, Social media, print media, Electronic media and group discussions are common place in J and K..Valley based politicians and political parties are leaving no stone unturned to exploit innocent masses of J and K by misleading and misquoting the facts and the resultant effect of this unconstitutional provision of constitution, which deprived J and K from getting it’s due share in union of India and therefore J and K continues to be debt ridden state ever since it joined the union of India. Art. 35-A and lack of vision of political spectrum of J and K are the main reasons behind the lack of development of the state despite abundance of resources.
Let me begin with the preamble of constitution of India,which spells as under:
We, the people of India, having solemnly resolved to constitute India into,Sovereign Socialist Secular Democratic Republic. And to secure all its citizens, Justice, social, economic and political,Liberty of thought, expression, belief, faith and worship,Equality of status and of opportunity ,And to promote among them all,Fraternity assuring the dignity of the Individual and the(unity and integrity of the Nation).
In our constituent Assembly this twenty-sixth day of November 1949,do Hereby Adopt, Enact And Give to ourselves this Constitution.
Under this background of preamble of the constitution all substantive,procedural and constitutional laws are laid down.
The preamble of the constitution of India is also called as basic structure of the constitution.
In keshavananda ‘s state of Kerala AIR 1973 SC 1461.The Supreme Court of India held that basic features of the constitution cannot be amended, even by a constitutional amendment.
Now let me discuss Art. 35-A in the back drop preamble and SC Judgment,the validity and sanctity of above cited provision. What is Art. 35-A ?
It is as under,35-A 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 J and K ,and no law here after 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,
(1)employment under the state Govt.,
(2)acquistion of imoveable property in the state.
(3)settlement in the state, or
(4)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.
Critical analysis of Art. 35-A clearly reveals that this article is the outcome of presidential proclamation of 14 may 1954.and had never been approved by the parliament of India and this ordinance has died it’s own death after the lapse of six months
More over provisions of Art.35-A are in direct confrontation with basic structure of the constitution and violates the very fundamental rights of the Indian citizens not only but is gender biased also against the statesubjects,
It violates Art. 14,equality before law. Womens are denied of equal rights.
It also violates Art. 15, prohibition of discrimination on ground of place of birth.
A citizen of India of out side J and K cannot buy land in J and K.
It also violates Art.16,equality of opportunity in matters of public employment.
Art. 35-A further violates the rights of the following communities of J and K as well like,
Valmikies, Gurkha’s, displaced residents of POJK as they cannot apply for Govt. Jobs.
Discrimination with the own people of the state.
In sushila sawneys case it is clearly stated by the court that state subject law is gender biased and is violative of the fundamental rights of the citizens of the state even.
As we live in a high entropy society, time is dynamic and if we the people of the state won’t conform with the movement of time remember than only gloom is the future of our comming generations. Political spectrum of valley for their vested interest blocked the development and progress of our people in the state, it is because of this provision, the industrial growth in J and K. Is almost nill. It is because of Art. 35-A there are no employment avenues in J and K. It is because of this article J and K continues to be begger state even after 70yrs. J and K gets 90 percent aid and 10 percent loan from central Government.How long we will beg aid from central Government. We must think over it. How long we will play in the hands of ruling elite and valley centric political spectrum who only play at the galleries to exploit and squeeze innocent masses of J and K by resorting to religious and communal lines for their own and clan benefits.we all live in democratic India and we all must be benefitted equally throughout length and breadth of this great country ours on economic front.Gone are the days of monarchy when the state subject laws were made to protect the territorial cum clan interests. Now India is a one territorial unit and it’s all citizens enjoy the same privileges and rights, J and K is integral part of India and cannot be an exception.
Hon’ble Supreme Court of India has taken up this matter for adjucation and that’s why debates hot every where. To my understanding of the constitution and the Art. 35-A. This provision is clearly violative of basic feature of the constitution of India hence it is ultravires, the striking down of this presidential proclamation will be in the interest of our country and common people of J and K as it is a major block in our way forward all around. Let us leave this matter to the prudence of our Apex court Judges and wait for final settlement of this contentious issue.
(The views expressed by the author are his own. Paigaam does not subscribe to the views of the writer.)
