Fiddling with Article 35A will open Pandora’s Box, 27 Kashmir based trade organisations continue protest across Srinagar
August 3, 2018
As the hearing on the pleas challenging the constitutional validity of Article 35-A draws near, legal experts opine that any tampering would affect the accession of the state with union of India.
Noted lawyer, Zaffar Shah said the rights and privileges available to a resident under Article 35-A would not only leave him at par with other Indians but then he/she will have to compete for jobs in the state with them.
He said the Article 35-A deals with the permanent resident, acquisition of property, jobs and scholarships for the residents of the state exclusively.
“As on date the 1932 notification of the Maharaja is protected and the residents have exclusive rights on all the four fronts under Article 35-A,” Shah said.
He said the instrument of accession was signed between two sovereigns in 1947 and Maharaja gave Government of India (GOI) rights to only formulate law on three subjects.
“In 1951 GoI itself went to the United Nations to seek a resolution to make a special provision for J&K in its constitution which the United Nations Security Council agreed,” Zaffar said, adding that it implies the Constitution of India in itself gives way for separate constitution of the state as it considers J&K as a sovereign republic which has only acceded but not merged with India.
He said Government of India brought in new routes to extend the laws of its parliament to J&K by way of presidential orders of which the 1954 presidential order is a part.
“They needed puppets who will give concurrence to what they wanted to extend here and that is why 182 orders have since been extended to us,” Zaffar said.
Incidentally, the 1954 Presidential order which details Article 35-A itself reads, “The rights of Indian citizen guaranteed by Indian Constitution will cease at Lakhanpur and even in case of a conflict the rights and special position of citizens of J&K will supersede and prevail the rights of Indian citizen.”
He said the fight against abrogation of Article 35-A is a fight “for our power to decide our future and power to choose and to uphold our identity because if this goes then our distinct character will also vanish”.
“This fight is for freedom of thought of people whose beliefs are higher than the economic benefit and propaganda related to Article-35A,” he said, adding that this fight isn’t for the conformist minds.
Anil Sethi, a Jammu based lawyer, said in Seervai’s 4th edition of ‘constitutional law of India’ there is no mention of Article 35-A.
“It was never part of the original Constitution and it was never incorporated in the Constitution by amending it,” Sethi said, adding that it needs to be found out whether its inclusion is a fraud, manipulation or later interpolation.
“Constitutional Assembly never discussed it and neither has Parliament discussed and passed it later,” he added.
Shakil Ahmad Sheikh, another Jammu based lawyer, said the very foundation of the accession of the state to India will be altered if the Article 35-A goes.
“Our relation with the union of India depends on Article 370. Those seeking abrogation in any of these laws aren’t well-wishers of either Jammu, Kashmir, Ladakh or the union of India,” Sheikh said.
He said for maintaining J&K’s special position within India the Article 35-A needs to be protected and all such pleas should be dismissed.
Air Vice Marshal (Retd) Kapil Kak said after the arrest of Sheikh Abdullah India has been resorting to covert and clandestine ways to extend its constitution to Jammu and Kashmir which has only escalated the issue rather than solving it.
He said there have been continuous attacks on Article 370 since 1947 and the apex court has always quashed such petitions in the past.
Prominent journalist, Prem Shankar Jha said the abrogation of Article 370 will open Pandora’s Box as people will rake up Article 371 and 372 granting special status to north-eastern states as well.