Article 35 A : The J&K issue


In this article, we check that Is Article 35 A violates fundamental rights of Indian constitution?
As this is a part of DPSP (Directive principle of state policy), its never superseded any fundamental right. We will check fundamental rights like: 
Article 14: Right to equality
Article 15 Prohibition of discrimination
Article 19 Right to freedom
Article 21 Right of dignified living & 
Article 25  freedom to follow any religion and propagate it.
Also, check this constitutional article is really according to constitute or not.
Lets first see the text of the Article or Bare Act :
"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."
Any law creates by J&K assembly on above 4 points override Indian constitution that purely against Article 14 right to equality.
Historical background 
Maharaja Hari Singh had created a law in 1927 that related to state subject and rights imposed on them and residence migrated to state. Evaluation of this article with 2 notifications in 1927 & 1932.
Notification 1: State Subject and their rights
Notification 2: Regulated Migrants to the state
After that in 1947 an instrument of accession signed by Maharaja of Kashmir. This had 3 points major points as
1. Only those persons that settled before 1911 and acquire immovable property, ten years prior are the only citizen of J&K.
2. All emigrants from J&K, including who migrated to Pakistan are considered state subjects. 
3. Non- permanent residents do not acquire immovable property, government jobs, scholarship
Indian Union only controls defence, foreign affairs, communication over the state.
Permanent residents grant certain privileges to debar non-residents of J&K buying lands, Government jobs & voting rights.

How this unconstitutional act inserted in India constitution?
1952: Delhi Agreement signed between Indian prime minister J.L.Nehru and Shiek Abdulla.
1954: A Presidential order passes as Article 35 A as parliament was not in session.  
1956: Jannu & Kashmir Constitution reiterate this.
According to Indian constitution: Parliament route of lawmaking that is the sole authority to amend any law as per article 368 (i). So this presidential order directly violates the sole of Indian constitution.

Backlash: Many people back this on basis of few points as below
1. 35 A is only clarificatory provision.
2. Not confer any power
3. Its vanished J&K autonomy, afraid to change demography and its a vote bank politics.
Many people believe that its a religious problem but it's not a religious problem rather its political problem. All political parties appease people on basis of religion.
Second, this is a security issue with Pakistan & China
Also, it's challenge Indian Sovernity as China creating roads and other construction activities under One belt one road initiative. China called the J&K region as its 5 provinces.

Why in news now:
On 14 Aug 2014 a petition logged by 'We the citizens' NGO against article 368
This article never presents before parliament. Both BJP + PDP reluctant to take participation in this discussion. Attorney General K.K. Venugopal told to SC that Central government don't have any views on 35A. Also suggest now Interlocutor appointed so no action taking at this time.
In Oct 2002 High court of J&K give an order in favour of Charu Wali Khanna and said its violates Fundamental rights & disenfranchised their children. High court order if a girl married to non-residence on J&K will not lose their rights by J&K but their children have no rights. 
On this decision, J&K state government move to Supreme court against this.

Its discriminatory in nature
Refugees came in 1947 still no rights in the state. They often called unfortunate citizens as they and their children have no right to buy property, participation in politics & the right to vote, applied for government exams jobs and scholarships
If Kashmiri men married with Pakistani girl become Kashmiri citizen but if any Kashmiri girls married to any person belongs to any other state in India, will lose her citizenship that clearly against below fundamental rights:
  1. Right to equality Article 14
  2. Article 15 probation of discrimination
  3. Article 16 Equality of opportunity
  4. Article 19 Freedom of speech
  5. Article 21 Right to person right and dignified living
Four members from Kashmir were already part of in constitutional committee created in 1947 so how this article immune from Indian constitution.1954 its makes classes within the class.
In 42nd constitutional amendment added Scurlar and Integrity that not implemented in J&K
Schedule tribe reservation not applicable in J&K. Communities like Gujjar is suffering due to this.
35 A is a temporary provision but that temporary provision brings power to article 370 that is permanent in nature.
From 1956 to till date no political determination available to remove this article 
Hence the process of inserting this article is not right so this is an unconstitutional article.



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