Bantu Dhar
The horse has been taken down but the efforts are in full swing to give it a new lease of life.
The case against Article 35A
How can a temporary provision be allowed to become a permanent part of the constitution when it denies its citizens the fundamental rights enshrined in that very constitution? Special privileges and temporary provisions provided to a state cannot be allowed to alter the basic structure of the constitution. The fundamental rights engraved in Part ??? of the constitution form the basic structure of the constitution of India. Article 368 gives powers to the Parliament to amend the constitution. Article 13(2) says: The state shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall to the extent of contravention be void. The fundamental rights have been given a transcendental position and a permanent place in the constitution. The validity of Article 13(2) has been time and again protected by the judiciary in its various judgments viz. Golaknath Case (1967), Kesavnanda Bharati case (1973), Minerva Mils case (1980), Waman Rao Case (1981), Indira Nehru Gandhi case (1975). The Kesavnanda Bharati case is historic as it laid down the doctrine of the ‘basic structure’ of the constitution. The elements of the basic structure which the highest court of our country protects comprises supremacy of the constitution, sovereign, democratic and republican nature of Indian polity, freedom and dignity of the individual, unity and integrity of the nation, principles of equality, secular character of the constitution, social justice and much more.
Article 35A from the time it has been passed through a Presidential order on 14th May 1954 bypassing the parliamentary method of amending the constitution has created a void that is detrimental to the constitution of this country. It has severed the integrity and sovereignty of our nation. The Article has been used to deprive its citizens the very basic rights, the constitutional guarantees provided by the constitution, the rights which form the eternal component of our sacred constitution and thus cannot be impugned. The very article which gives special privileges and rights to a section of citizens of the country takes away the fundamental rights of the majority of its citizens.
Article 35A introduced in haste empowers the state government to confer special rights and privileges on the permanent residents of the state and imposes restrictions on persons from outside the state in respect to:
i. Employment under the state Government.
ii. Acquisition of immovable property in the state;
iii. Settlement in the state.
iv. Right to scholarships and such other forms of aid as the State Government may provide.
Article 35A as such violates Article 14 (equality before law and equal protection of the laws) and Article 19 (1) (d, e) (freedom of movement and residence) which confer the right to equality and right to reside and settle to its citizens in any part of the country. Article 15 enjoins the state to not to discriminate against any citizen on grounds of religion, caste, race, sex and place of birth.
Running contrary to all this, the state of J&K has furthered emboldened this discriminatory and regressive article. The state has arbitrarily applied this article in defining permanent resident status of women who marry outside the state by snatching their right of being a permanent resident (PR) of the state. The state High court in its very important judgment in the case of state of J&K versus Sheela Sawhney (2004) declared that there was no provision in the existing law dealing with the status of female PR who gets married to a non-resident. This discriminatory application of Article 35A was declared to be void as it had no legal basis. But the judgment didn’t make any observation regarding the PR rights of children of women who marry a non PR. This is the clear case in which the state Government is trying to create a state within a state. In contrary to the reprieve provided by the High court, the state went further and passed Permanent Residents (Disqualificaion Bill) 2004 in the lower house stating that women of the state will lose their PR status if they marry a non PR. The bill was passed by the lower House but couldn’t see the light of the day as it had legal implications. The J&K Permanent Residents (Disqualification) Bill was again introduced in 2010 as private member’s bill and it laid down that a woman who marries outside the state would lose the status of permanent resident (PR) including the right to hold property, securing jobs in state services and voting in the assembly elections. The bill was later dropped as it required a constitutional amendment and thus couldn’t be introduced in the upper house. The reason put forth by the intelligentsia and politicians of the state (from the Kashmir valley) is the fear of demographic change that will happen in the state. This self created monster of demographic change has been used well to create a divide between the Union and the state of J&K and goes against the cardinal feature of our constitution that is unity and integrity of the nation.
The façade of demographic change
Who will change the demography of the state? The citizens of our country from other states! Is this our idea of justice and social equality? This is in complete contradiction with the constitution of this country which provides equal rights to its citizens. Every citizen has a right to reside anywhere in the country and be a part of the growth and development of that state. The actual demographic change that happened in the state of J&K was in 1990 when half a million Kashmir Pandits were forced to leave their houses in Kashmir and left to perish in the camps in Jammu province of the state of J&K. If the state is genuinely serious in protecting the demography of the state, they should first restore and resettle the aborigines of Kashmir that is Kashmiri Pandits whose persecution and exodus is a serious blot on the idea of demography the state is propagating. The people of Kashmir should take out rallies and processions in support of the return of Kashmiri Pandits. That should be the idea of restoring the actual demographic change inflicted on Kashmir. But this isn’t the case. There is no black and white here. It has been a clear case of furthering the communal propaganda by the separatist forces to cleanse the particular region of its diverse communities. They can organize rallies expressing their sympathy for illegal immigrants of Rohingya and Bangladesh but not a whimper for the people who are the original inhabitants of Kashmir and are living in exile for the last 28 years.
The plight of West Pakistan Refugees
The inhumane treatment meted out to West Pakistan refugees by the state and the centre should shake the conscience of the entire country. During partition of India, a large scale migration of Hindus took place in which many Hindus migrated to different parts of the country and some of them migrated to the state of J&K. The ones who settled in J&K haven’t been given the right to employment, right to education, right to participate in the elections and the right to own property. They are treated as non state-subjects of the state. They haven’t been given the status of permanent residents of the state. They are Indian citizens but live as orphans in the state. They can vote in Parliamentary elections and can apply for jobs in the centre but are not entitled to any rights in the state; being treated as faceless entities. The state under the garb of protecting the demography of the state is causing grave injustice to the citizens of India.
The way forward
The flaws within this article run down deep. The state of J&K doesn’t need this regressive and outdated article to protect its demography, but serious administrative, political and law and order measures to stop the growing separatism and radicalization of the state. The façade of ‘demographic change’ has to fall. The state should employ serious measures along with the Central Government on the deportation of the illegal immigrants from Rohingya. The state should shift its focus from defending Article 35A to the actual demographic threat thrusted on this region by illegal immigrants from Rohingya. This is the time of protecting the demography of the state. The state should act.
The debate and discussions have already begun. The points reflecting the constitutional invalidity of this article have been put forth. Charu Wali Khanna and Seema Razdan Bhargav have rightly challenged Article 35A in the apex court after the state refused to recognize them as permanent residents. One of the petitioners said that she has no documentary evidence but anecdotal proof that she is from Kashmir. This is a very important observation. Their family migrated to other parts of the country after being persecuted during the Afghan rule in Kashmir. The petition is scheduled to be heard in a month by a five judge constitutional bench in the Supreme Court. The case in reference here brings into light the problem the Kashmiri Pandits of this generation are facing today. The same pattern is being followed. Many Kashmiri Pandits are settled outside the state and when they come here to get a state subject certificate for their children, they have to go through a harrowing experience of filling different forms and salvaging records from the past. They are asked to produce land records and old state subject certificates which got lost during the exodus of 1990. Many fail to get these certificates and thus become a non state-subject. This is a systematic effort of the state to erode the identity of a particular community.
In light of this, various political parties in Jammu region of the state of J&K are voicing their support in demand for the abrogation of Article 35A. The India of 1950’s is not the India of 2017. We are a nation whose veins are throbbing with ideals of democracy, diversity, equality and secularism. The citizens of our country should enjoy equal rights and be subjected to the laws on equal plane. The highest court of our country has recently given resounding verdicts with regard to triple talaq and right to privacy. Right to privacy has its bearing on right to live, move and reside in any part of the country. Article 35A violates the very core of Indian constitution, its basic structure; the fundamental rights which are inviolable. The premise for the ouster of Article 35A has been set. The writ of the constitution must flow in every nook and corner of the country. The time is ripe to undo the wrong done in the past, to bury the dead horse and take the country forward towards equality and justice. Constitutionalism must prevail.
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