Wednesday, May 22, 2019
 
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Article 35-A is unconstitutional & anti-fundamental rights
Needs to be renewed




Prof. Bhim Singh



The role of the Constituent Assembly of India came to an end on January 26, 1950 when Constitution of India was promulgated, except Jammu and Kashmir.

Under special circumstances, may be, political compulsions, State of J&K was not brought under the cover of the Constitution of India as a whole. The Constituent Assembly of India inserted Article 370 in the neck of Indian Constitution for the reasons to be debated one day. Anyhow, Article 370 was brought as a temporary provision inside the Constitution of India. The Constituent Assembly had clearly debated under the Chairmanship of Dr. Bhimrao Ambedkar that the provision was only temporary and meant to be relaxed at appropriate time. Sad 70 years are over with Article 370.

The consequences were sad and undesirable even unexpected for several reasons which shall be discussed by the intellectuals and thinkers someday. But, what happened in J&K following this temporary provision, say Article 370 which has not come to the expectation of the people of the country. A Constituent Assembly was framed in J&K under the leadership of Sheikh Mohd. Abdullah who was nominated as Prime Minister of J&K by the then Ruler, Maharaja Hari Singh in 1948. The Maharaja was forced to migrate from J&K to Bombay. He remained in Bombay all his life and till his death in 1961. His ashes were brought as he had desired to Jammu were immersed in the Tawi River by his only son, Dr. Karan Singh, the then Sadar-e-Riyasat of J&K. Yuvraj Karan Singh was designated as the Regent in place of his father in 1948 till he was elected as Sadar–e-Riyasat in 1952.

After January 26, 1950 when Constitution of India was promulgated in the entire country except J&K. Unfortunately, Article 370 was inserted as a temporary provision. Temporary which ‘continues till date’. It was this provision which divested the power of the Parliament to legislate in respect of even three subjects, Defence, Foreign Affairs, Communications and Allied Matters which were included in the Instrument of Accession signed by the Maharaja, the ruler of the state in 1947. This was not an error but a blunder. The error continues to govern the state of Jammu & Kashmir. Article 370 also introduced Clause-3 in Article 370 saying that “President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as may specify.”

“Article 35(A) has to be viewed legally and constitutionally from different prospects. Article 35(A) was not created/implied by the Constituent Assembly nor it has been enacted by the Parliament of India. Article 35(A) is only from outside the scope of Chapter-III of Constitution of India relating with the Fundamental Rights enshrined for the citizens of India only. This amendment was introduced in May 1954 for political reasons, may be to find a way out to continue Sheikh Mohd. Abdullah in detention after his dismissal from premiership of J&K on August 9, 1953. British Lawyer, Dingle Foot while arguing against the alleged detention of Sheikh Abdullah in 1954 in Jammu Jail had raised the contention that no Indian citizen could be detained without trial for more than three months. The Fundamental Rights were available to every citizen of India, including Sheikh Mohd. Abdullah and therefore he challenged Sheikh Abdullah’s detention. The Prime Minister of India Pt. Jawaharlal Nehru, according to information, addressed a letter to the then President of India, Dr. Rajendra Prasad with a proposal that Article 35 should be amended. Article 35(A) was conceived without any legal or constitutional support. The impression given was that President of India shall amend any provision in the Constitution may it be Article 35 and exclude the citizens of India from its cover in any part of the country. It was one of the greatest tragedies of the time that the citizens of India in J&K were deprived of their Fundamental Rights enshrined in the Constitution of India from Article 12 to 35. The President had limited power under the Constitution to introduce any amendment etc. The President of India could only impose an Ordinance for six months. This amendment in Article 35 was not covered under Article 370 either. This amendment proposed by the President of India in May 1954 was valid only for six months. It was this amendment which deprived the residents of J&K (Citizens of India) of the entire batch of Fundamental Rights ranging from Article 12 to Article 35. This 35-A continues to be unconstitutional since then. This is sad and unfortunate that this country has so many historians, intellectuals, revolutionaries and unparallel thinkers yet none has cared or dared study the implications/ scope of this Ordinance issued by the President of India in May 1954.

I call upon the academicians, lawyers, intellectuals, media and all those who believe in democracy and rule of law to study in-depth the reasons and the history buried under the grave of Article 35(A). This is Article 35(A) which has no constitutional standing nor it was even discussed, argued and debated in any House of Legislature of its validity. The greatest misfortune, I see is that this 35(A) which I call a draconian law under which I have personally suffered detentions for years in J&K without trial. My several friends, political colleagues have also suffered jails under illegal detentions. Why the present rulers as well as ex-rulers in the State of J&K have been supporting 35(A)? This is 35(A) which is born without parents and for the reasons to use detention laws against the genuine political activists in J&K. It has provided a naked sword to the Rulers of Jammu & Kashmir to crush the genuine voice of the people in J&K. This is unfortunate that 64% of the population in J&K is illiterate today. The power hungry politicians are using them to ensure that they shall continue to govern the innocent people in J&K by exploiting such matters which intend to promote the interest of the ruling parties. The wrath of the local Kashmiri leaders of NC & PDP who are shouting against Rule of Law is obvious–power money”.

Who was the author of 35(A)? What was the mission behind Article 35-A whose womb this 35(A) was conceived in 1954? What effect it has on the innocent law-abiding citizens in J&K? Does this 35(A) stands as a wailing wall between the civil liberties and the citizens of India in J&K? What is the relevance of Fundamental Rights enshrined in the Constitution of India for the Indian citizens in J&K in the presence of Article 35(A)? Let us start a debate on this subject whether this is for the protection of Fundamental Rights of the Indian citizens in J&K or 35-A is naked sword in the hands of the undesirable ruling parties so that the innocent and democracy loving people shall not get the benefit of Fundamental Rights which every Indian except J&K has been enjoying since 1954 when 35-A was inserted in the Indian Constitution.


(The writer is a Sr. Advocate , Chief Patron, J&K National Panthers Party.Mobs: 9871565333/9419180764
,Email: [email protected]
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