By Daya Sagar
It has been alleged that Article 35A of Constitution of India has been illegitimately “added’ in the Constitution of India and has so far been taken as the one legitimately existing. In the recent times pointed controversies/ constitutional anomalies over the very existence ‘Art 35A’ of Constitution of India have been more aired . The charge is : : Art 35A is a “New Article” and not an existing provision of COI with some exceptions & modifications : Use of Clause -1 sub- Clause -d of Art 370 for amending the Constitution of India to add a new article by the name Art35A by the President of India has been questioned.
The “Question” is before the supreme court of India as regards the very existence of Art 35A as an article of Constitution of India.
What would be the judgement of the Apex Court can not be anticipated at this stage since even the decision regarding placing the question mark on the order of the President of India (amending the Constitution of India by using powers ‘claimed’ to have been conferred on the President by Clause-1 of Art 370 of COI) before a larger Constitution bench has not yet been taken although a smaller bench had suggested so nearly a year back. The question before the Apex Court is more of a legal issue but so far those opposing the petitions have more attempted to push the issue into the political allies and have to some extent even succeeded since the even the State as well as Union governments have so far been suggesting deferment of the hearings on ‘this’ purely legal issue pleading ‘political’ reasons and have succeeded too.
Let us leave the “Question” :whether Art35A is an legitimate article of COI or it is not : to the Apex court to decide and instead in the mean time see how best at least the class of Indian citizens that have been categorised as Permanent Residents of Jammu & Kashmir ( in a way like taking constituent powers through Art 35A ) can be taken care of their fundamental and constitutional rights( even in their own ‘J&K’) like the other indian citizens in Punjab or UP or MP have what to talk of the rights of other Indian citizens ( with in the Indian state of J&K) who are not categorised as permanent residents of J&K in terms of Section-6 of J&K Constitution.
No doubt some petitioners have also pleaded some bads of the contents of the text of Art 35A that have been / that could shield the wrongs of the State Government / legislature but such direct or indirect references of wrongs have already been held as protected under the umbrella of Art35A by the Apex court in the past ( Petition Bachan Lal Kalgotra Vs. State of Jammu and Kashmir and Ors 20-02-1987) and could now also be contested by the respondents / opponents taking shelter under political reasoning. But the legal question on the very existence cannot defended politically and that is why many in ‘ Kashmir Valley” are today so much disturbed that shedding all ethics of wisdom they have been, in a way, even publically found throwing threats on Apex Court of India in case the issue is subjected to a fair judicial trial (enough of indicators could be taken from what the then J&K CM Ms Mehbooba Mufti said in July 2017 and what Dr. Farooq Abdullah ji had said in August 2017).
Even if the legal question before the supreme court since 2014 falls or is carried unanswered for quite some time there is still much that could be done by those who are caring for the welfare of the people of J&K and look for peace / stability in J&K. Let us leave aside the controversies on the contents of Art35A w.r.t citizens of India who are non- permanent resident of J&K. There is still much more to be discussed and done even for the betterment of those who are categorised as Permanent residents of J&K keeping in view the behaviour of the people who have so far ruled J&K and those who aspire to remain in power seats in coming times. Going by the ground realities it would not be wrong to say that over the years Art35A ‘of’ constitution of India (COI) has been more used to show ‘distances’ between J&K State and India rather than using it for the real good of even some ‘classified Indian citizens'( Indian citizens defined as the permanent residents of J&K (PR of J&K) in Section-6 of J&K Constitution).
J&K is under Governor Rule. Case related to Art35A may come for hearing before the Supreme Court after 4 months from now. But still the governor J&K Satya Pal Malik can look for applying some legitimate corrections using provisions / authorities as laid down in Section-92 of J&K Constitution. He has already started the process of applying some corrections, may be related to other civil / administrative matters.
To be continued
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