Article 35A- A clear example of subversion of democratic credentials of India
Article 35A is the most controversial Article, or it can be better called as “the worst form of treachery”, in the history of India.
I call it the worst form of treachery because the then ruling party in India twisted the entire rules and procedures in continuation of the policy of appeasement, of a few, at the cost of the entire country. This appeasement policy, which was followed during that time, was resulted in the worst form of discrimination by the powerful political class of that time.
The seeds, of separatists’ tendency, were sowed in the heart of the people of the state, especially of the valley, via this Article. The insertion of article 35A created obstacles in the complete integration of Jammu and Kashmir with the entire country.
It is important to note here that Article 35A, which was supposed to be added between Article 35 and Article 36 by any parliamentary procedure was not added there. Neither it was in the list of constitutional amendments. Instead it was mentioned in the Constitution of India as appendix and it is still there. It is surprising that an important amendment was missed from the main body of the constitution though it has been implemented on the ground. It is important to mention here that had this Article been there in the main body of the constitution, it surely would have been challenged.
The worst part was that the said Article was passed through without even involving the parliament, which has the presence of democratically elected individuals in whom people have put their faith. The said Article was passed through the presidential ordinance route. So, it has remained out of the purview of judicial scrutiny for so long and it has never been challenged for the last six decades.
Jammu and Kashmir, or more specifically Kashmir, has been the problematic area because of its handling from the day the India has acceded to the state. The presidential order dated May 14, 1954 amended the constitution of India in a clandestine manner to subvert the democratic credentials of the country that requires the involvement of people’s representative in any amendment.
As per the clearly laid down provision, in the constitution of India in Article 368, any Article can be amended only by the parliament yet the same has not been invoked in the case of 35A. It is difficult to understand what propelled the then government to add this Article secretively and subverting the democratic functioning of India. Though it is clearly mentioned in the constitution of India that the President of India does not have the power to make amendments in the constitution but in this case the President overstepped his authority and the parliamentary form of governance was taken for granted.
Though the 1954 order mention that the order was issued “in exercise of powers conferred by clause (1) of Article 370 of the Constitution, with the concurrence of the Government of Jammu and Kashmir” yet it is important to mention here that the constitution does not give unbridled power to the president to amend the constitution of our country. The validity of any presidential ordinance is of six weeks, unless it would be extended by the parliament, yet this case is quite peculiar, wherein all laid down procedures and rules were violated.
It is important to mention here that this particular amendment is not mentioned in the text of the main body of the constitution so it remained obscured from audit. Another important thing is that this amendment does not find place even in the list of amendments and also it was not the part of the original constitution adopted by the constituent assembly on 26th November, 1949. Therefore, it can be construed that this amendment is a clear case of blatant misuse of political power enjoyed by Delhi and only one Kashmiri.
The provision of 35A, on the one hand, clearly epitomes the brazen treachery, on the other it propelled discriminatory practices not only towards the residents of Jammu and Kashmir itself but also with the citizens of the entire country. Under this provision, the state is empowered to distinguish between permanent and non-permanent residents of Jammu and Kashmir; confer special rights and privileges on permanent residents of the state and; deprive others from employment, acquisition of property, scholarship right and settlement in the state.
Though this Article is presented as correct and out of the purview of judicial scrutiny, yet it is essential that this secretively amended Article must pass through judicial scrutiny to establish its validity. I really feel strange how the incumbent CM of Jammu and Kashmir was quite antagonised and even threatened that no one will hold the Indian tricolour flag in the Kashmir valley if Article 35A is tinkered with. Though such pressures can work in an autocratic rule but it would not work in a democratic country like ours. Also, the judiciary is there in our country, which is very well equipped to take decisions on such a matter of national importance.
It is widely acknowledged fact that one should fight against injustice otherwise it will perpetuate; the same became true when an NGO named ‘We the Citizens’ challenged the tenability of this Article in 2014. It sought to strike down this controversial Article as it has not been inserted via due parliamentary process of amending the constitution. Another organisation that has challenged the validity of this Article in the Supreme Court is Jammu and Kashmir Study Centre. The Apex Court of the country has issued notice to the state government and the union government in this matter.
The other discussion, which is going round in this context, is that a handful of people consider that it is BJP’s agenda of saffronisation. I feel it has become fashionable to put the blame squarely on RSS and BJP for everything and every event is seen with the lenses of saffronisation. Even if something has to be set right and legal course of action is to be taken for it, it is considered the saffronisation agenda. Such rhetoric is out of context in this matter and I believe that it is the right thing to challenge the validity of such Article and undo the wrong done in the history.
I also think when other parts of the country do not put such restrictions on the residents of Jammu & Kashmir, why should they be restricted in Jammu & Kashmir. I think such Article bolster the people to talk about India and Kashmir as two separate entities though Kashmir is not separate from India but it is an integral part of India. I do consider that abolishing of this Article will actually help in complete integration of Jammu & Kashmir with India.
At last, it can be said that Kashmir has remained a problematic area because it was not handled as dextrously as other states of India. Calling Article 35A a special status in itself is controversial as the backdoor route was adopted by the then Congress Government in 1954. The specialty of this provision is not special status, but the commission of treachery in the history of a democratic country. By any logic, the people of India, who have shown faith in the constitution, should not have been kept in dark.
The worst part is that the said Article has remained in the constitution till today. I think that the then government should have dealt with Jammu & Kashmir issue cautiously but instead of caution the secrecy route was taken. Also, the implementation of this Article resulted in deprivation of lakhs of Indian citizens from Justice (social, economical and political) and equality of status and opportunity.
The most vital feature of our constitution i.e. fraternity is also compromised to a great extend due to this Article. Further, this Article is the blatant violation of Article 14 which states “Equality before law”; Article 15 “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”; Article 16 “Equality of opportunity in matters of public employment” and; Article 21A “Right to Education”. Continuation of this provision is like giving sword into the hands of unruly dictator.
If the said Article is not abrogated the discriminatory practices will continue and the state will be ruled by oligarchy. The deprived sections in Jammu& Kashmir will not have their rightful place in it. This Article is the clear case of violation of Article 13 also which states that “Law inconsistent with or in derogation of the fundamental rights”.
The Supreme Court of India has recently pulled up the Modi Government for taking ordinance route and has categorically observed that “the ordinance making power is not a parallel source of legislation” and the ordinance route is the “subversion of democratic legislative processes”. The top court of the country has also stated that ordinance are to be essentially placed before legislatures under the mandatory provisions of the constitution and failure to do so is tantamount to “serious constitutional infraction and abuse of the constitutional process”.
Therefore, this Article must be abrogated by the Apex Court. I believe that judiciary will deliver justice not only to the people (including West Pakistan refugees, women, SCs, etc.) living in Jammu & Kashmir, who have been deprived of their basic rights because of this draconian Article, but also to the citizens of the rest of the country.