Sunil Sethi
From a discreet Article in the Constitution of India introduced by a process, which raises many questions to the bonafide of the manner of its introduction, is the most talked about Article of Constitution of India in recent times. Article 35-A of the Constitution of India has travelled a long distance. Only few years back, not many were aware of the existence of Article 35-A in the statute book of Constitution of India. The deliberations and discussions on this hidden Article initiated by group of persons who are concerned with upholding the majesty of law and working for the human dignity, has brought the situation as it is today when matter is being considered by the Hon’ble Supreme Court of India. The Article is being hotly contested within and more hotly debated outside the Court and has become a major politico-legal issue for the vast population of the State where the affected classes are keenly watching the proceedings hoping to get some justice, which hitherto has been denied to them for last 70 years. The decision of the Hon’ble Supreme Court of India on Article 35-A will decide the fate of the daughters of the State married to non-State Subjects so far as rights of their children to claim properties, service and education in the State is concerned, equally the hopes and aspirations of about seventy thousand people known as West Pakistani Refugees will also depend upon the judgment of Hon’ble Supreme Court of India as to whether such a huge population can be denied the basic right to live with human dignity in the State of Jammu and Kashmir which have not been honoured for the last seventy years for their settlement. The proceedings will decide the fate of members of Valmiki Samaj who are entitled only to get job of Sweepers in the State of Jammu and Kashmir by operation of State Subject Law by operation of Article 35-A. The negation of justice to them over a period of seven decades is finally being evaluated by the highest court of the country, but the perpetuators of denial of their fundamental and human rights sensing that justice will finally prevail in the Hon’ble Supreme Court of India, have started raising hue and cry outside the Court with the illegal design to influence the proceedings of the Court.
The Article 35-A of the Constitution of India by itself does not create any right with any person but rather it protects State Subject laws from being evaluated being violative of the right of equality guaranteed under Article 14 of the Constitution of India. The State Subject Laws which have led to large scale discrimination and illegalities being perpetuated could not be challenged in the court of law being ultra-vires as the same are protected by Article 35-A of the Constitution of India. If Article 35-A is declared as ultra-virus, it will only allow the Courts to look to the validity of the State Subject Laws. It is this situation which is giving sleepless nights to the political classes who have denied justice to the large segment of Population of the State. Article 35-A of the Constitution of India reads as under:-
“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.”.
As is very clear from mere reading of Article above that it is not only creating wall of separation between state subjects and rest of citizens of the country but also within state subjects too when it does not allow entry of children of daughters of the state married to non state subjects and treat them as OUTSIDERS . What happens to unfortunate children of such female state subjects who get divorce or widow is of no concern to politicians lobbying in favour this draconian law . For them what matters is to cling to power in whatever way it can come .
Now that the issue is being considered by the Hon’ble Supreme Court of India, there will be number of questions which will be put for consideration to the Highest Court of the country to settle the issue once for all so that the sense of justice prevails in the State of Jammu and Kashmir. The protection of the rights of the residents of the State of Jammu and Kashmir is a separate issue which can be separately dealt with by the Legislators but giving the protection to a Statute from the judicial evaluation is something, which is not known to the jurisprudence. The interesting development of the matter being considered by the Hon’ble Supreme Court of India will give rise to number of important questions including:-
(i) Whether the power of judicial review as basic structure of the Constitution of India can be taken away or diluted;
(ii) If the power of judicial review can be diluted by the Legislation or constitutional amendment under what consideration and as to what extent and under what parameters it can be done?
(iii) Whether the President of India has the legislative power to introduce a new Article to the Constitution of India as Article 35-A is the new Article in the Constitution of India whereas Presidential Order under Article 370 only refers to the extension of existing provisions of the Constitution of India with such modifications as may be suggested by the State Government while giving concurrence.
(iv) Whether Article 370 , under which Art 35 A has been introduced , can be deemed to have survived beyond the life of the Constituent Assembly which was to decide upon its future and which did not take a decision on the same. As Article 370 was a temporary provision in the Constitution of India till a decision was taken with regard to it by the Constituent Assembly of Jammu and Kashmir, its continuation beyond the life of the Constituent Assembly of Jammu and Kashmir, even when no decision was taken is a disputed preposition.
(v) Whether Article 35-A protects the State Subject Laws which are discriminatory in nature and which are otherwise indefensible under challenge.
(vi) Whether the State Subject laws create inequality amongst the women State Subjects so far as their progenies are concerned, West PAK refugees settled in the State for the last 70 years, Valmiki community whose right to seek employment is restricted to a particular post and the citizen of India living outside the State of Jammu and Kashmir.
(vii) Whether there can be any restrictions imposed in acquiring of land within the State of Jammu and Kashmir by a Non-State Subject for industrial, residential or agriculture use and whether conditions thereupon can be imposed by the State Legislature and to what extent?
(viii) Can there be an iron curtain on acquiring of land in the State of the Union irrespective of its user?
(ix) Can the interest of the residents of the State of Jammu and Kashmir be protected by the Legislations without constitutional protection of Article 35-A. In essence if Article 25-A is declared ultra-virus, what position of law will govern the field thereafter?
(x) Whether the State Government was justified in formulating the State Subject Laws in 1957 with Retrospective Effect and thereby taking away the rights of all the persons after independence till the Constitution of Jammu and Kashmir was promulgated.
(xi) Whether the State Government was justified in taking away the right of acquisition of State subject by permission ,as was enacted by the Ruler of the State in 1927 and 1932?
(xii) Whether the situation existing at the time of making of State Subject Law in 1927 and 1932 continues to be same even after 1947 when independence was attained?
The above questions will decide the course of history so far as State of Jammu and Kashmir is concerned and the judgment of the court will also decide the whole issue of tendency of separatism and ideology of separatists in the State of Jammu and Kashmir and it will also give an answer as to whether we exist or continue to exist as one nation or State of J&K as a separate entity out of the Union.
(The author is a senior advocate)
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