What has India gained by conferring special status to Jammu and Kashmir? What has India gained by conferring separate laws, separate Constitution and separate flag to Jammu and Kashmir? What has India gained by not allowing people from other parts of the country to come and settle in Jammu and Kashmir? It is separatists and anti-Indian forces who have gained by all this!
Why when late Maharaja Hari Singh had unconditionally acceded to India did Centre at that time not allow Jammu and Kashmir to be fully merged with India? Why do we keep treating Jammu and Kashmir as special and different from the rest of India? Why politicians claim Jammu and Kashmir to be the head of India and yet never ensured that this head is fully attached with the rest of the body by merging it completely with India with no ifs and buts? Why Centre fails to realize that this separate head would be just reduced to nothing?
Why Centre allowed discriminatory provisions like Article 370 and Article 35A to be incorporated in our Constitution? Why all this was done through a Presidential order way back in 1954? Why it was not revoked later? Due to sheer lack of political will!
Why can’t Centre amend Constitution to merge Jammu and Kashmir fully with India? Why Centre inspite of majority in both the houses of Parliament is not taking any step in this direction? Why Centre fails to appreciate that so many concessions given to Jammu and Kashmir has only served to further alienate the people of Jammu and Kashmir from India? It has encouraged separatists to wave Pakistani flags, flags of dreaded global terror groups like ISIS among others and still get security from Centre worth crores of rupees! This must stop forthwith! NIA raids on Hurriyat leaders and their probe into their funding and nexus with terror leaders in Pakistan is welcome but just house arrest will not do! They must be put behind bars because that is their right place! Anyone who hobnobs with Pakistan and puts our soldiers and national security in grave peril don’t deserve freedom of any kind! Their case must be pursued with full vigour and taken to its logical conclusion!
Why can’t Centre rescind Article 35A that empowers the state’s legislature to define Jammu and Kashmir residents and accord citizenship rights to them? Why can’t Centre rescind Article 35A which bars non-residents from buying property in the state, applying for government jobs, voting in the Jammu and Kashmir Assembly elections? Why can’t Centre actively argue in favour of its abrogation in the Supreme Court where it is currently being debated as it has been challenged?
Truth be told, a five-Judge Constitution Bench of the Supreme Court is examining a law which denies Kashmiri women and their descendants of their property rights should they marry anyone outside the state and bars them from applying for local jobs. What nonsense! Why should a Kashmiri women be barred from property rights or any other rights just because she marries someone from outside the state? This alone explains why Article 35A has been challenged many times in the past.
Before proceeding ahead, it is imperative to first understand what Article 35A is all about and how it crept inside our Constitution. The President while invoking the powers vested in him under Article 370 clause (d) issued “The Constitution (Application to Jammu & Kashmir) Order 1954 on May 14, 1954 (C.O. 48)” where under many provisions of Constitution and entries of Schedules were made applicable to J&K. The order, inter alia, states, “After Article 35, the following new Article shall be added, namely:
“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 or persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents 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.”
While craving for the exclusive indulgence of my esteemed readers, let me inform them that a Kashmiri woman Charu Wali Khanna has challenged Article 35A of the Indian Constitution to make special laws regarding the state. Another state law which bars outsiders from picking up property or jobs in the state is already under challenge. All such raw discrimination must end forthwith once and for all! The 1954 order which ushered in Article 35A was only supposed to be a temporary provision and same is the case with Article 370 but why it is that even after 70 years of independence they have still not been scrapped?
For my esteemed readers exclusive indulgence, let me also inform them that the top court is also examining a challenge to the special status guaranteed to the state under Article 370 of the Constitution. In its preliminary observations, a Bench led by Chief Justice-designate Dipak Misra said the law seemed to be violative of the right to equality guaranteed under the Indian Constitution. Very rightly so! He said that this may have to be examined by a Bench comprising five Benches. Even former CJI JS Khehar had raised the question while he was CJI that, “How can one country have two Constitutions and two flags and two laws? This disgrace must be set right by a Constitutional amendment and Jammu and Kashmir must be merged fully with India! Why when Pakistan can merge PoK with Pakistan can we not do the same with J&K?
To put things in perspective, the Supreme Court is hearing a Public Interest Litigation (PIL) petition by Seema Razdan Bhargav and Charu Wali Khanna thereby challenging the Constitutional validity of Article 35A, which prohibits a non-Jammu and Kashmir resident from buying property in the State and ensures job reservation for residents. It came up before a Bench of Justices Dipak Misra and AM Khanwilkar, was tagged along with another petition challenging the Constitutional validity of Article 35A which has already been referred to a three-Judge Bench. Discrimination between citizens of one state as compared to that of another cannot be justified under any circumstances!
A bare reading of Article 370 (1) (d) of the Constitution of India would show that there is no power conferred to the President of India to amend the Constitution by adding any new Article by himself. It also states that Article 368(1) empowers the Parliament to amend, vary and repeal any provision of the Constitution and states that it is beyond the power and jurisdiction of the President to inculcate any Article to the Constitution. Therefore, it is unconstitutional for the President to drive a new Article by himself.
Not stopping here, it is further contended that this Article is violative of fundamental rights which are Article 14, 21 and 19 of the Constitution as it creates a difference among people of the rest of India and Jammu and Kashmir. It was prayed in the petition that a declaration be made that Constitution can be amended only by Article 368. It was also demanded in the petition that the Article 35A be held “unconstitutional” as the President could not have “amended the Constitution” by way of the 1954 order, and that it was only supposed to be a “temporary provision”.
Truth be told, the Centre is likely to take a divergent opinion from that of the Jammu and Kashmir government on Article 35A, on the ground that it discriminates against women who marry outside the State from applying for jobs or buying property which is in violation of Article 14 of the Constitution. Article 14 stipulates that, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” It is beyond a straw of doubt that Article 35A falls foul of the direction laid down in Article 14 of the Constitution.
In all fairness, Article 35A and 370 must be scrapped and Jammu and Kashmir must be integrated with the rest of India. As far as protests in J&K are concerned, that has been happening since 1947, nothing new. Kashmir Valley cannot alone be allowed to hold the whole State of Jammu and Kashmir to ransom!
When India always maintain J&K as an integral part of India, it is high time and now it must be fully integrated with the rest of India so that it becomes an inseparable part of India in reality and not just on papers or on lips alone! Too much importance should not be attached to what Mehbooba says or what Abdullahs says or what Hurriyat says who love chanting anti-Indian slogans! Unity and integrity of India is more important and not their petty vested interests!
One can only laugh when Mehbooba says that “Any attempt to tinker with Article 35A would have repercussions, and India will not get a shoulder to carry its national flag in J&K.” This is certainly not a laughing matter. J&K is the head of India and we have lost countless soldiers to ensure that it remains with India! No force not even God can ever snatch away J&K from India! Mehbooba must know this fully well that India has not sacrificed more than one lakh soldiers in J&K just for gifting it to Pakistan or anyone else! Centre is quite capable to deal sternly and strongly with the anti-national forces that don’t want the full and final merger of J&K with India!
Why those Indians who settled in Jammu are still treated as refugees and why they are not allowed to become owner of the land they cultivate even though they can build houses on the allotted land nor can they sell or dispose the land? Why they are even denied jobs, admissions in higher educational institutions, and worst of all even denied the right to vote in elections for panchayats, local bodies and State legislature and cannot avail of any scholarships like Prime Minister Special Scholarship Scheme for J&K and any other benefit as this can be achieved only by the production of Permanent Resident Certificate which is mandatory and which is again denied to them? Why the people who migrated from West Pakistan at the time of partition or those migrants from Nepal who were brought to serve in the Maharaja’s Army before partition and about 200 odd Valmiki families who migrated from Punjab in late fifties and were mostly employed as safai karamcharis are still discriminated against due to this shameful “Special Status” enjoyed by J&K by virtue of Article 35A and 370? But in contrast, Muslim families who migrated to Pakistan and became Pakistani citizens are allowed to return even today and claim their property in accordance with Section 6(2) of the Constitution of Jammu and Kashmir amended vide 6th Amendment enacted in 1965. This is beyond absurdity and discrimination of the highest order!
One fervently hopes that the Constitution Bench will act decisively so that merger of J&K becomes complete and final with India! Two wrongs can never make a right. Just because Article 35A and Article 370 have existed for 70 years it does not mean that they can never be abrogated! I am sure that the Supreme Court will keep the larger picture in mind and render a landmark decision on this very soon! Centre must also immediately amend Constitution to allow the complete assimilation of J&K into India! All citizens of India must back Centre in doing so because this alone can wipe out the sense of alienation and separatism that has been cultivated by anti-Indian forces assiduously since 1947 and complete the full and final merger of J&K with India! But the billion dollar question is: Will Centre ever do this? I have serious doubts!
By Sanjeev Sirohi