- A Look through the mist
Better wait for the decision of Apex court on Art 35A and in the mean time undo some wrongs
Kashmir valley dominated political leadership still have fair opportunity to apply corrections .
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The Permanent Resident of J&K Law / Constitutional Provision ( commonly referred as State Subject Law ) of Indian state of Jammu & Kashmir is more under discussions after some petitions have been filed in High Courts and Supreme court of India .To be brief the common understanding has been that the this law (Permanent Resident of J&K status Law ) discriminates between citizens of India as regards owning immovable assets in J&K , seeking government jobs in J&K , obtaining education from J&K Government owned professional colleges and voting for & entering into J&K Legislature to the extent of violating the fundamental rights of some citizens of India as granted by Constitution of India (COI) under articles like 14 ( right to equality),15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth ),16 (Equality of opportunity in matters of public employment) ,19-c ( to reside and settle in any part of the territory of India; ) , *21A ( Right to education … *Ins by the Constitution (Eighty-sixth Amendment) Act, 2002, s. ) etc. Whereas, facts are not so simply so. No doubt those Indian citizens who come in the category of the Permanent Residents of J&K are today enjoying preferential treatments in J&K over other Indian citizens ( non Permanent Residents of J&K) even violating the fundamental rights of other Indian citizens but the safe guards to local discriminatory provisions as incorporated in J&K Constitution { (Section-51 – Qualifications for membership of the Legislature) ; ( Section-127 – Transitional provisions); ( Section-140- Elections to the Legislative Assembly); (Section-157(2 & 3) – . Repeal and saving of laws and rules; Section-10 (The permanent, residents of the State shall have all the rights guaranteed to them under the Constitution of India ), Section- 19(a,b,d). Right to work and to public assistance in certain cases ( Permanent resident specific ) , Section-20a ( to secure to every permanent resident the right to free education up to the University standard; ); have not been so far held void under the shelter of “Article 35A ‘of’ Constitution of India even when some of the Acts of Legislature and policy orders of J&K Government are discriminating even amongst the Indian citizens who are the permanent residents of J&K like Male Permanent Residents and Female Permanent Residents of J&K even when Section-22-d of J&K is in place (Right of women:-The State shall endeavour to secure to all women- (d) the right to full equality in all social, educational, political and legal matters;) and between the POJK DPs Permanent Residents of J&K staying in J&K and those staying in Punjab or UP.
Art35A had been so far put under question mark for it’s being unconstitutional and void on the ground that it damaged the basic structure of the Constitution of India by allowing the Indian state of J&K to incorporate/ order some provisions unfair to some citizens of India but now the question is before the Apex court is on constitutional validity of the manner ( pleading that it is surely added as amendment of constitution of India by unduly over stretching the authority conferred on President of India under Clause 1-d of Article 370 of constitution of India ) in which Art 35A has been added in the COI as a new article .
Hon’ble supreme court has so far held valid for survival the laws and provisions made in J&K that otherwise discriminate between citizens of India who are Permanent Residents (PR) of J&K and those who are not PR of J&K under the cover of ‘Art35A’ of Constitution of India even if they violate the fundamental rights of some other Indian citizens as granted in part-III of COI .But the question that was initiated by persons like the writer in 2009 is a question on the constitutional legitimacy of even the ‘ birth’ of Art35A and there exist all reasons for taking up this issue before the Apex Court for consideration by a larger Constitutional bench pleading that Clause (1) of Art 370 of Constitution of India confers no power on President of India to amend the Constitution of India so as to add a new article in the Constitution of India since only Parliament of India can do so by using the constituent power vested in Art 368 of Constitution of India.
Hence before discussing good and bad of the text of Art-35A, the first need is to examine whether this Article even constitutionally exits? More so the first question is not of abrogation of article 35A but is of more of its legitimate existence.
It is not wise for some public men to throw challenges on the Courts for influencing an ultimate decision on a matter lying before the court for examination. “One ” can influence a political decision by public pressure but surely neither one should nor one can influence a judicial decision with political pressures. So, let the constitutional technicalities be examined and decided by the larger constitutional bench as regards the text of C.O. 48 where it says :- “After Article 35, the following new article shall be added, namely:—35A.” and Kashmir valley political leadership as well as the ‘civil society’/ trade associations / professional associations / should wait for the decision of the Apex court instead of labelling Art35A as a ‘gift’ to Kashmir Valley people from government of India as a good will gesture for the “muslim majority” princely state having vouched for joining India in 1947 and as a tool to preserve muslim majority demography of state.
Better the Kashmir valley leadership should in the meantime put pressures on those who are in power and are in legislature to make corrections to the neglects of the past and unfair use of the cover so far taken under “Art35A” so that atleast the allegations against the local governments / legislatures of the past that Art35A has been more used to projects J&K as a state distantly related to India than it has been used for the betterment of “ permanent” residents of J&K are weakened so some extent .
National conference had called for a special session of J&K Legislative assembly before 29th August for discussions inview of the sub judice questions of Art35A, it will be better for NC to press for the said demand even after 29th August but this time more for making corrections where ever required through legislature as regards (i ) undoing unfair treatment being given to the woman permanent residents of J&K, (ii) the unfair treatment being given to 5300 POJK displaced families of 1947 in view of THE Jammu and Kashmir Displaced Persons ( Permanent settlement ACT 1971 ACT No.. X of 1971), (iii) the permanent resident benefits being denied to 1947 refugees from Pakistan who are possessing and cultivation lands in J&K for last more than 6 decades under the provisions of Notification No.578-C 0/5 1954 of 7.5.1954 ( State Cabinet’s decision No. 9578-C of 1954) ; (iv) doing justice with the families of safai karmcharies ( about 200 in 1957) who had come to the rescue of state government in 1957 on the request of the then Prime Minister Bakshi Ghulam Mohd by granting them rights by issuing executive orders/ if needed by legislative corrections for taking up jobs in government other than that of safai karamchari ; (v) and showing high order social gesture / gratitude at least towards the 15 Param Vir Chakra decorated non J&K permanent resident Indian soldiers who fought the enemy on LOC/IB in J&K by granting them permanent resident rights & gifting lands and government jobs to their families in J&K ; (v) providing Government Medical Colleges adequately with experienced and qualified faculties of super specialties by relaxing the local Permanent Resident laws that could be amended without any difficulty. and (vii) the likes of.
The provisions are available in J&K Constitution & with the J&K government , the only requirement is of intentions. And by doing so the J&K leadership ( to be specific Kashmiri leadership) would be able to cover up their unwise statements as made recently to the extent of saying that Art35A is for preserving the muslim majority character of J&K State . Even some well wisher of “ Kashmir valley” centric political leadership like “Mr. Prem Shankar Jha too have been quoted as having advised some thing like that ( though in a low tone ) on 27-082017 while they were in Srinagar that ‘ Leadership’ should in the mean time undo the unfair treatment being meted to women PR of J&K.
Will Farooq’s “United front” convince the present government / legislature for applying corrections? Better do so before the next hearing on the petitions pending before Apex court. If done so, irrespective of what is the decision of the Apex court, the Kashmir valley dominated political leadership would surely have some face saving.
( Daya Sagar Sr. Journalist and Social Activist [email protected] 09419796096 )
