Supreme Court has again deferred the decision on 35 A of the constitution and the matter remains hanging while bullets continue to fly in the valley and border. One hopes it does not become Ram Mandir case where the decision continues to elude the judiciary. Lately some hope kindled again when the court finally decided anothercontroversial and sensitive issue of consensual sex . Law making has been a matter of slippery ground as interpretation too gives a new view of law as it is done in separate process of administrative decision. In interpreting article 375 Supreme court talked of constitutional morality and permitted the petitioners which was all these years a moral and legal turpitude. It was clear that morality and law are not same thing and what is permitted was legality allowed but morality is decided by society and belief of people.
There is no such dilemma to take a view of Kashmir case as was in case of article 377 or article 375a. Certainly it has political and religious complexity . But Supreme Court is not expected to be constrained by religious or political limitations except by the letter and spirit of Indian constitution vis avis J&K’s own constitution, which it has clearly ruled earlier to be subordinate to the National charter. Threat of Sheikh Farooq Abdullah to boycott elections or other such threats need not put any hurdle in the functioning of Supreme Court. It is understandable that Abdullahs think it is their family honor since his father did negotiate with the Prime Minister and consider it their biggest trophy. No doubt Sheikh was the author of this article 377 which gave special status to Kashmir but it was India which accepted to make a temporary concession for short time which never ended. It is also known that Sardar Patel then Deputy Prime Minister was a hurdle in this inclusion. He later rued that had Nehru permitted him he would have solved the problem once for all in fifteen days. Now it continues to be vexing issue. Dr Ambedkar was known to have given a classic answer to Abdullah while not accepting it, as he thought it is unfair that.
they take everything from India to Kashmir and give not even equalrights to Indian citizen. Strangely on dissolution of Constituent assembly this article 377 was also supposed to be dissolved but it did not happen and now it is claimed that it permanent fixture of theConstitution. It can be abolished only with the concurrence of assembly.
Article 35A specifically empowers the state government to accept permanent citizens and it has defined the person born in the land as PRs. It should have been same as Indian Constitution lays down but this was introduced in 1954. SC has clearly decided that J&K is not autonomous state and it has ‘no sovereignty outside Indian Constitution’.
Now the petitioners have claimed discrimination, as Indian citizens are getting discriminatory treatment in the matter of citizenship between India and one of its states. Why should they serve Kashmir if they have no right s there. Many of its educational institutions in Medical and engineering do not have faulty and are on the verge of closure since they do not have faculty who find it difficult to adjust to environment especially finding place to settle down. Many Indian doctors have questioned why should they treat Kashmiris if they do not give us equal right? Women too felt discriminated as originally they did not have right. Later on appeal to High court a bit of concession was added concerning one generation concession.
The main objection is that it is not constitutionally in order as the Presidential order did not have any cabinet or Parliamentary approval.No amendment to the Constitution is permitted without following the procedure laid down in article 370 of Indian constitution and clearance of Cabinet and Parliament.Now same can be withdrawan without any further approval by the President himself. have to decide it one day even if it leads to disturnacnce as we can not keep it hanging for ever. We should, therefore, withdraw the order in question which government can do without following lengthy procedure.The question is will we ? or we wait for 2019?
(The writer is former Chairman, International Airports Authorirty of India)
By Prof. NK Singh