Coming straight to the crux of the matter, a five-Judge Constitution Bench of the Supreme Court may examine a law which denies Kashmiri women and their descendants of their property rights should they marry anyone outside the state and bars them from applying for local jobs. What nonsense! Why should a Kashmiri women be barred from property rights or any other rights just because she marries someone from outside the state? This alone explains why Article 35A has been challenged many times in the past.
Before proceeding ahead, it is imperative to first understand what Article 35A is all about and how it crept inside our Constitution. The President while invoking the powers vested in him under Article 370 clause (d) issued “The Constitution (Application to Jammu & Kashmir) Order 1954 on May 14, 1954 (C.O. 48)” where under many provisions of Constitution and entries of Schedules were made applicable to J&K. The order, inter alia, states, “After Article 35, the following new Article shall be added, namely:
“35A. Saving of laws with respect to permanent residents and their rights- Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State: (a) defining the classes or persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any restrictions as respects: (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv ) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”
It cannot be lost sight of that a 2002 order by the Jammu and Kashmir High Court in the State of Jammu and Kashmir versus Dr Sushila Sawhney and Others had said that the daughter of a permanent resident marrying a person outside the State would not lose the status of permanent resident of Jammu and Kashmir. More importantly, the Article 35A was a provision that had been inserted in the Constitution through a “Presidential Order” in 1954 and it was not ratified by Parliament. There is an option with the Centre to ratify the provision by sending it to Parliament. But it has not been considered yet. It accords special privileges to Jammu and Kashmir citizens and empowers state legislature to frame separate law for state.
On , a Bench comprising CJI JS Khehar and Justice DY Chandrachud had referred the NGO’s plea to a three-Judge Bench after Attorney General KK Venugopal said it raised Constitutional issues. Venugopal pointed out that the NDA government was not very keen on filing affidavit in this and instead wants a larger debate on it which it said was “a very sensitive matter”. Venugopal then asked the CJI JS Khehar to refer the matter to a larger Bench as Constitutional issues were involved in the case. The Court then made it clear that a three-Judge Bench will hear the matter after six weeks.
In all fairness, Article 35A and 370 must be scrapped and Jammu and Kashmir must be integrated with the rest of India. As far as protests in J&K are concerned, that has been happening since 1947. Nothing new. Kashmir Valley cannot alone be allowed to hold the whole State of Jammu and Kashmir to ransom! When India always maintain J&K as an integral part of India, it is high time and now it must be fully integrated with the rest of India so that it becomes an inseparable part of India in reality and not just on papers or on lips alone! Too much importance should not be attached to what Mehbooba says or what Abdullahs says or what Hurriyat says who love chanting anti-Indian slogans! One can only laugh when Mehbooba says that “any attempt to tinker with Article 35A would have repercussions, and India will not get a shoulder to carry its national flag in J&K.” This is certainly not a laughing matter. J&K is the head of India and we have lost countless soldiers to ensure that it remains with India! No force can snatch away J&K from India!
Sanjeeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kaankerkhera,
Meerut – 250001, Uttar Pradesh.