By Daya Sagar
Earlier it was Art 370 of Constitution of India and now it is Article 35A that is more in focus with regard to J&K. In the recent times pointed controversies/ constitutional anomalies even over the very existence ‘Art 35A’ of Constitution of India (COI) has been aired . The charge is : Art 35A is a “New Article” and not an existing provision of COI with some exceptions & modifications : Use Clause -1 sub- Clause -d of Art 370 for amending the Constitution of India to add a new article by the President of India is Questionable.
Going by the ground realities it would not 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 in Section-6 of J&K Constitution).
Earlier also there were questions raised before the judiciary but that were more regarding some ‘good’ and bad that were surviving under the cover of Art35A as a provision in the constitution of India . Whereas now since ‘question ‘is on the very ‘ legitimate existence’ of Art35A in COI (added in Constitution of India after Art35 simply by a Presidential order and not as an amendment made to the constitution by Parliament using the constituent power as contained in Art 368 of COI) that has been aired and even placed before the judiciary as well as the ‘common’ thinkers, some segments / political leadership in J&K has been so much disturbed that shedding all ethics of wisdom they have been, in a way, even publically found throwing threats on the Apex Court of India in case the issue is subjected to a fair judicial trial. So, strangely even separatists too have joined them. Wisdom lies in waiting for the decision of Apex court on the very existence of Art 35A and making efforts for return of peace & stability ,
Therefore till the apex court makes verdict on the petitions / questions on the constitutional existence of ‘Art35A’ the civil society of J&K (Kashmir valley in particular) and PDP-NC- CPM leadership should too in the meantime impress upon the State administration to do whatever good that should have been done to make good the deficiencies that have even disturbed the PRs / erstwhile State Subjects of J&K as well worth going to courts ( woman permanent residents, POJK1947 times 5300 families living in states other than J&K)
Good and bad of provisions created/ made / ordered in J&K (in relation to fundamental rights of some Indian citizens) under the shelter of appear discriminating not only amongst some classes of Indian citizens like PRs of J&K and Non PRs of J&K but also among the Indian citizens who are named as PRs of J&K in terms of Section-6 of J&K Constitution before the court have been also placed in the public domain . Instead of unfairly making attempts (quote: “we have also decided to appeal the democratic voices and all credible sections of the society in the country to understand the dangers ahead and the serious implications of removing Article 35A. This will be a dangerous move, dangerous for the state and as a country as a whole,”: unquote ) for dragging a purely legal issue/ question into political debates worth further disturbing peace, inter regional oneness and communal harmony in already disturbed state it will be wiser for the socio- political leadership to make efforts for whatever corrections are possible at administrative level / at the level of legislature / even using the short provisions that are available under the Governor rule / President rule.
The subjects for immediate, legitimate and possible corrections could be as regards (1). rights of “women permanent residents of J&K” regarding ‘choosing a life partner’ (2). there being no reserved seats for Schedule Tribes Permanent residents of J&K in the Legislative Assembly of J&K although it is there in other Indian states in spite there being Section-23 of JK Constitution (3). the seats in J&K assembly reserved for permanent residents Schedule Caste were 7 when number was total seats was 76, the same should have been increased to atleast 8-9 after total was increased to 87 but number is still only 7.(4). 5300 Families of 1947 POJK DPs who were State Subjects of princely state of J&K now residing in other Indian states have been in a way disowned by state taking shelter under an Act of J&K Legislature passed in 1971 concerning POJK DPs (5). inadequate professional / qualified staff in J&K Medical Colleges and super specialty hospitals since non PR can not join and health cover to PRs of J&K is inadequate (6) in 2002 J&K legislature deferred the Delimitation of assembly segments to after post 2026 census i.e. after 2031 AD denying proper re-fixation of representative of nearness at to PRs of J&K at right time by The Constitution Of Jammu And Kashmir (Tweniy-Ninth Amendment) Act, 2002 (23rd April_ 2002) ( Section47(3) of J&K Constitution ) (7). Sections 8 and 9 Of J&K constitution have not been used for 60 years for betterment of PRs. (8) denying PRs of J&K students right to apply against thousands of MS/MD seats in national pool by not contributing a few seats in the National pool PR (9). rights for 1947 West Pakistan refugees who are possessing and cultivating lands in J&K as allotted in terms of Government of Jammu & Kashmir Notification No.578-C 0/5 1954 of 7.5.1954 keeping in view that in Maharaja’s times State subject class-III was granted just after 10 years. (10) rights of rightful “locals” like nearly 200 Valmiki / safaikaramchari families who were invited from Punjab by J&K Government somewhere in 1957. (11) and the like of social rights of at least 15 out of 21 families of Param Vir Chakra decorated soldiers who are from other states but had taken part in wars fought on LOC/IB in J&K.
(Daya Sagar is a Sr Journalist and a known analyst of J&K affairs can be reached at firstname.lastname@example.org)
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