Thursday, June 20, 2019
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Diagnosis of Article 35A : Let those who support this ladder to heavens answer

By Prof.Bhim Singh

Prof.Bhim Singh who was a Legislator three times in the Legislature of J&K, a Sr. Advocate, Executive Chairman of State Legal Aid Committee, J&K who has been fighting for Human Rights of all human beings on earth has respectfully raised the following questions on the characteristic of Article 35-A in the Constitution which he hopes may be answered by every supporter and opponent to the formulation of Article 35-A which was inserted in the Indian Constitution by the President of India in 1954 without referring it to the Parliament or without testing its legality before any Constitution Bench/Court.
Q.1. Who has introduced/formulated the Constitution of India which was promulgated on January 26, 1950? Who had approved that Constitution of India?
Ans. It is very simple for all of us to answer that the Constitution of India was formulated by the Constituent Assembly of India after a long discussion/debate for nearly three years after India was declared independent in 1947. It was finally promulgated on January 26, 1950.
Q.2. When Article 35-A was promulgated and by whom? Who was authorized to amend any part of the Constitution according to the Constitution itself? Who was competent to amend any Article/Provision contained in any Article ranging from Article 12 to 35 as this chapter dealt with Fundamental Rights in the Constitution which were guaranteed to all citizens of India?
Ans. No legislature or even authority enjoyed any right/privilege to amend any provision guaranteed in any Article relating to the Fundamental Rights in the Indian Constitution. The Parliament was later declared competent within the meaning and scope of Article 368 of the Indian Constitution was competent to amend any provision in the Fundamental Rights in accordance with the procedure and conditions provided in the Constitution. No state had any competence to even touch any provision in Chapter-III on the Fundamental Rights. The procedure as laid down in the Constitution has to be followed by the Parliament.
Q.3. How and by whom Article 35 was amended by adding ‘A’ and introduce Article 35-A in the Constitution and when? Under what authority it was introduced?
Ans. That is very important question which needs to be understood by all those who are opposing this amendment and those who are supporting Article 35-A. Article 35-A was promulgated under the Presidential Order naturally signed and issued by the then President of India, Dr. Rajendra Prasad in May 1954. The President of India had constitutional power as the President of India to introduce any amendment on the recommendation of the Prime Minister and his Council of Ministers. It was recommended by the then Prime Minister Pt. Jawaharlal Nehru and promulgated by a Presidential Order on May 14, 1954. The Presidential Order, according to the command of the Constitution of India could not have survived beyond six months. Therefore such ordinance was valid till December 1954 only. This Presidential Order had no legal sanction beyond December 1954.
Q.4. What were the constitutional effects of this amendment in Article 35?
Ans. This amendment could have been utilized/used by the Govt. of J&K to frame laws/rules in connection with the application of Fundamental Rights to the citizens of India in J&K for a period of six months only. It would have become a law only had Parliament of India taken up the matter and passed this amendment in order to bring a change in Article 35 in accordance with the procedure laid down. This Presidential Order could have effected the application of Fundamental Rights to the Permanent Residents of J&K only for a period of six months. Any law could have been framed by the State of J&K to impose any restriction on the special rights or privileges of the citizens of India residing as Permanent Residents in J&K. The Govt. of J&K should have used its dictatorial powers to impose restrictions upon the Permanent Residents of J&K with respect to any or the following manner for a period of six months, that too in respect of;
i). Employments under the State Government.
ii). Acquisition of immovable property in the State.
iii). Settlement in the State by outsiders. It had no constitutional/legal dependence with the provisions contained in Article 370 of the Indian Constitution.
This is important to understand that this amendment called 35-A had also limited scope and empowered the State Govt. to control local employment or restrict acquisition of immovable property or check settlement in the state of the outsiders.
Q.5. How this amendment namely 35-A is applicable today in 2018 and what are its effects on the Permanent Residents of J&K?
Ans. According to the Constitution of India this amendment lapsed in December 1954 itself. Even otherwise it had effected/harmed the Fundamental Rights of the Permanent Residents of J&K who were called ‘State Subjects’ since 1927. This amendment had no effect on the status of the Permanent Residents of J&K who were guaranteed State Subject with constitutional rights by Maharaja Hari Singh in 1927 by virtue of all called ‘State Subject’. The Constitution of India had made it clear that no Public Interest Laws which stand implemented in J&K for the welfare of the Permanent Residents shall be a subject of the Parliament. And all such rights as were guaranteed to the J&K State Subjects in Chapter-III of the Indian Constitution shall remain intact. They were declared in its Royal Decree by Maharaja Hari Singh in 1927. No provision of the rights of the Permanent Residents shall be effected by any provision in the Constitution of India. In brief the Article 35-A had no such provision which could have disturbed the rights and the privileges guaranteed to the Permanent Residents of the State of J&K guaranteed by the State Subject in 1927. The amendment 35-A dealt with employment, acquisition by the Union of India of immovable property or settlement of the outsiders only. This has nothing in it which could disturb/obstruct any of the Fundamental Rights of the Permanent Residents of J&K who were recognized as citizens of India on January 26, 1950 in accordance with the provisions in the Constitution of India. This Chapter of Fundamental Rights was disturbed by the Presidential Order amending Article 35 and introducing Article 35-A in the Indian Constitution. The Constitution of J&K is in no way under the command/ dictates of Article 35-A and vice-versa. The Constitution of India could not be controlled by a State Constitution.
Q.6. Why political parties which govern J&K since 1950 are opposing Article 35-A?
Ans. It is very interesting question which needs to be studied to understand the psychological background of those who have been in power for nearly 70 years and have started beating the drums in public in support of unconstitutional provision which lapsed in December, 1954-- 35-A. The parties which ruled J&K for several years with crude illegal rules and using detention laws against the youth in particular to continue their suppressive and oppressive rule for decades. The political parties which have been ruling J&K without rule of law using all kinds of oppressive and suppressive measures for decades have suddenly cropped up propaganda in favour of Article 35-A. They are also supporting this amended Article before the Supreme Court of India. The reason is very simple and can be understood by the people of J&K in particular if they re-look at the pages of the J&K history which has been full of violence, illegal detentions, unlawful arrests of the youth in particular who have been demanding fundamental rights and justice. Even myself, the composer, of this question had suffered at the hands of rulers of National Conference, PDP, the Congress and even BJP now for several years of detentions under illegal arrests and detentions in J&K jails. There are several orders of the Supreme Court of India relating to the release of this prisoner by the orders of the Supreme Court. Even Supreme Court awarded compensation to this writer when he was illegally detained when he was sitting MLA of the Panthers Party. These political leaders, the so-called champions of freedom demanding removal of Article 35-A have been misruling and using detentions and jails against their opponents fighting for justice and equity. They have suddenly become spokesmen for the suppressed and oppressed citizens of India in J&K called ‘Permanent Residents’. This is pety that those who have bungled with the Fundamental Rights of the Permanent Residents of J&K, detained hundreds and thousands of innocent residents of J&K in the name of security and public order have suddenly come out as spokesman of the fundamental rights of the permanent residents of J&K.
Q.7. How political parties in J&K supporting Article 35-A are unjustified?
Ans. The political parties who ruled J&K for decades with iron hand seeking constitutional support from the provisions contained in Article 370 for nearly 65 years have suddenly started supporting those political elements in J&K whom they used to accuse as anti-India elements and enemies of peace. They have joined hands today with other Kashmiri Hurriyat Conference leaders who do not accept the Constitution of India. Let them decide do they accept the Constitution of India or not. How can ex-ruling parties in J&K justify their support to the slogan of Hurriyat Conference? Do these political leaders--ex-rulers, agree with the manifesto and slogan of the Hurriyat Conference? Can Hurriyat Conference leaders justify their stand on 35-A which itself has empowered the Govt. of J&K to slash all fundamental rights which were guaranteed in Chapter-III of the Constitution of India in 1950 to the Permanent Residents of J&K/State Subjects? Shall these political parties answer to the Permanent Residents of the State if they would allow all fundamental rights to flow into J&K as have been enjoyed by all citizens of India.
Q.8. Why Hurriyat Conference and other slogan mongers are supporting such political parties in J&K which are opposing 35-A?
Ans. It deserves to be understood in prospective keeping in view the present political situation in J&K. Most of the disgruntled political elements in J&K are convinced that people of J&K shall live in peace sharing all fundamental rights with the citizens of India. They have been taking every opportunity to help/promote confusion and disturbance. The ex-ruling party leaders have started beating the drums to create confusion and promote lawlessness in J&K which will help only those who have been supporting anarchy and lawlessness in the state.
Q.9. What needs to be done to convince the permanent residents in the state in this crisis?
Ans. This is very simple. Declare fundamental rights to all the permanent residents of the state repeating, as is proclaimed in the Indian Constitution that the fundamental rights to the permanent residents of J&K shall remain intact and the rights of the permanent residents which were guaranteed by Maharaja Hari Singh in 1927 shall not be disturbed as has been assured in the Constitution of India. Article 35-A stands lapsed since December 1954 itself. The matter is before the Supreme Court of India. No law, even the Parliament cannot rescue Article 35-A even if they desires so because there is a Parliament in India which has sovereign authority vested in it by the Constitution. J&K is integral part of India as was declared by the Constitution of India at that time when Constitution of India was promulgated on January 26, 1950. The State of J&K is integral part of the Union of India with exclusive fundamental rights guaranteed to all its citizens, the Permanent Residents.

(The author is a Sr. Advocate, Supreme Court of India
Chief Patron, J&K National Panthers Party)

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