Article 35A – Of dignity and collective identity!

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By: Irshad Ahmad Bhat, Zahid Sultan Magray

As the apex court of India is heading towards a decision on determining the constitutional validity of  Article 35A, atmosphere in the state is politically sensitive and is freighted with political meanings. But people from all walks of life including mainstream, separatists or people belonging to any region in the state, have shown keen resistance in defence of article 35A of the Indian constitution. Article 370 and Article-35A have always been seen, the masses here, as mirroring of their unique identity and dignity irrespective of their political, ethnic, regional, religious or demographic leanings.

Article 35-A was inserted in the constitution as a part of a raft of amendments made through a presidential order in 1954. Broadly speaking, it gives Jammu and Kashmir state legislature a carte Blanche to define a class of persons as constituting “permanent residents”. The article allows the govt to confer on such residents special rights and privileges with respect to matters of public employment, acquisition of immovable property in the state, settlement in various states, scholarship, public aid and welfare. This article also exempts such legislation from being annulled on the ground that it might violate one or more fundamental rights.

A writ petition filed by an NGO ‘We the Citizens’ and other similar petitions sought that this immunity granted to the state should be scrapped on the ground that it was against the “vary sprit of oneness of India” as it creates a class within a class of Indian citizens and is in violation of article 14,19 and 21 of the Indian constitution. Central government has called for a larger debate in the Supreme Court on this sensitive issue.

At the outset , Supreme Court of India referred the matter to a three bench judge while testing petitioner’s argument; considering whether the article-35A violates basic structure of constitution or not. It indicated that the matter may ultimately be decided by constitution bench.  Any tinkering with Article 35A will be a Waterloo moment in the state -centre constitutional relations. However, previous benches have already put their imprimatur on 1954 presidential order. If apex court is looking to settle the matter by exploring beyond the existing precedence, a proper study of article-35A and its constitutional history will establish that present option is meritless. Supreme Court of India must act as defender of it and uphold the supremacy of constitution once again.

Ms Louise Tillin in Oxford Handbook of ‘The Indian constitution’ argues that India asymmetric federalism is a reality where some states enjoy greater Autonomy over governance then others. Such asymmetry is typified by Article-370- a provision, as Tillin argued, was debated for over five months before incorporating it into Indian constitution.

Whatever the history of this arrangement is , Apex court in particular and central  government in general must consider the fears of demographic change, ground realities in the state which is presently going through the worst phase of disturbance.  Governments- be that at the centre or the state- must desist from amending J&K constitution in haste. Governments should rather pave way for ensuring political space for electoral politics and let the elected government to take a stand on such sensitive issues. Otherwise, such moves are fraught with political, security consequences and are against the ethics of federalism.

Interestingly, our regional Political parties have almost lost their moral right to express their concern on such issues as it is the mainstream political parties that have been responsible for eroding the special constitutional position of the state of Jammu and Kashmir for their vested interests.

A.G Noorani, an eminent constitutional expert wrote few years back, that if British sold Kashmir to Maharaja Gulab Singh in whole sale, the leaders of mainstream political parties sold Kashmir in retail from time to time. As a permanent resident, article-35A is a precious asset and perceived identity of state and it’s protection is needed at all costs. Since the battle is a legal one must rely on the constitutional and legal experts pursuing the case.

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