Article 35A: Breach Of Fundamental Right To Equality

August 4, 2019October 6, 2019 Tietler

Article 35A

ensures special rights to Kashmir’s permanent residents.

Only the permanent residents(PR) have the right to own immovable property, settle permanently, or get state-sponsored scholarship schemes. It stop Indian citizens from settling in the state, acquiring immovable properties, seeking employment in the state.

It restricts companies from hiring non-resident persons in the state and denies property rights to a woman who marries a person from outside the state. It adversely affects the economic development of the state.

It doesn’t grant permanent resident status to the refugees of West Pakistan is very inhuman and grossly undermines their well-being and a complete violation of global Human Rights. Which undermines their faith in the goodness of India as well as its impartial judicial system.

It tries to prevent it from being challenged in courts by mandating that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land. Undermine the Constitutional power of Constitution to review the legislation under its Basic structure.

Article 35A has catalyzed in radicalization and anesthetization and aids separatist ideology

History:

This article was incorporated into the Constitution in 1954 by the orders of the then president Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.

“Article 35A is against the Spirit of oneness of India”

It creates a class within a class of Indian citizens as it treats non-permanent residents of J&K as ‘second-class’ citizens.
Non-permanent residents of J&K are not eligible for employment under the State government and are also debarred from contesting elections.
If a native woman marries a man not holding a permanent resident certificate of J & K, then she would lose her property right and their children also become ineligible to claim the property of their mother.
Meritorious students are denied scholarships and they cannot even seek redress in any court of law.
Refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.
Minority i.e. Valmikis condition: Those were habituated there for employment in Municipalities but still they didn’t get PR, they children were not allowed to change their profession.
It was unconstitutionally enacted, bypassing Article 368 which empowers only Parliament to amend the Constitution.
The laws enacted in pursuance of Article 35A are fundamental rights conferred by Part III of the Constitution, especially, and not limited to, Article 14 (right to equality) and Article 21 (protection of life).

Article 35A is void because the government did not place it before Parliament

Under Article 368 of the Constitution, only Parliament has the power to amend any part of the Constitution. But this route of incorporation of Article 35A through the President sign which sidetracked the Parliament.
This short-circuiting of the law-making process has raised biased political, legal and constitutional questions. The then President acted outside his jurisdiction.
The absence of political, legal and constitutional clarity on these worsens the issues. In 1961 judgment in Puranlal Lakhanpal vs. The President of India, the Supreme Court, elaborated on the President’s powers under Article 370 to make modifications in the Constitution.

However, the judgment was silent as to whether the President can, without the Parliament s knowledge, introduce a new Article. This question remained open till now.

Article 35A undermines the rights of West Pakistan refugees

Article 35A undermines the rights of West Pakistan refugees, who migrated from Pakistan to India in 1947. They have been denied the permanent resident status of J&K. This is an issue worth looking from a humane perspective and not on the political gains. Despite assurances from the government and some legislation of settlement Act of 1982 and some more ratification at periodic intervals. It is very sensitive in J&K because of clash of ideological positions, claims and counter-claims of different stakeholders. Hence, the permanent resident certificate has not been granted to these people.

Now, amid speculation is made that Article 35 A, may be scrapped, and strong opposition from political parties of the state to any such move.

The nation is now debating as to how to correct the blunder of Nehru. Now Indians believe that his vision of Kashmir has proved to be disastrous. Our approach has to be guided by the principles of sovereignty, fundamental rights before laws coupled with keeping the welfare and security and interest of the people in mind. It also dictates an aggressive posture against separatists and terrorists. What we are currently seeing is the attempt to establish a rule of law in the Valley. This is a Monster moment.’

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