LJP President Sanjay Saraf bats for Article 35-A,termed it a bridge between New Delhi and J&K

wilayattimes (Jammu and Kashmir)

Srinagar:Welcoming the outreach of Prime Minister Mr. Narendra Modi to the people of Jammu & Kashmir, National spokesperson and National Youth President of Lok Jan Shakti Party Mr.Sanjay Saraf said that it is the positive development, though in continuation to a series of development oriented program of Prime Minister since the people of Jammu & Kashmir require a healing to their wounds before the new era of peace and tranquility sets in.

While addressing the press conference at Srinagar Sanjay Saraf said that it is imperative on all to respond positively to the call of Prime Minister and he also appealed to all the stake holders who believe in prosperous, peaceful, progressive and forward looking people of Jammu & Kashmir to come forward and strive for a new beginning to ensure dignified way of life for the people of the state and particularly appealed to the youth to work in a manner which ensures sustainable peace, prosperity and development for the people of the state.

When asked about the opinion on Article 35-A, Mr.Saraf said history reveals that when in 1949, the Indian constituent assembly which was entrusted with the task of framing the constitution and was coming to conclude its task, a large number of Indian states with the exception of State of Jammu and Kashmir had been represented in the said constituent Assembly.

This shows that from the very beginning the Union Constitution was never intended to be applied to the state of J&K which was presumed to have a separate Constitution for its internal administration and for regulating the administrative and legislative relations with the Union.

Clause 7 of the Instrument and Accession executed between various rulers of the princely States and the Dominion of India or to fetter his discretion to enter into arrangement with the Government of India under the Constitution.

Most of the rulers accepted the Constitution of India by the issuance of proclamations in that behalf.

However, so far as the State is concerned, Karan Singh who was installed as the ruler of the State by his father had nominated four representatives namely, Sheikh Mohd. Abdullah, Mirza Mohd. Afzal Baig, Maulana Mohd. Syed Masoodi and Moti Ram Baigra from the State to the Indian Consituent Assembly. Karan Singh also issued a proclamation on 25th of Nov. 1949 by which he directed that the Constitution of India which was likely to be adopted by the Central Constituent Assembly shall, in so far as it is applicable to the State govern the Constitutional relationship between the State and the Union.

To cover the case of Jammu and Kashmir the Federal Constitution incorporated the Article 370 with the clear understanding that it was for the Constituent Assembly of the State to frame a constitution for its people to regulate the future relations of the State with the Union of India.

Various provisions of the Constitution of India have been applied to the State of Jammu and Kashmir by means of numerous Constitutional Orders issued by the President of India on terms of Article 370 of the Constitution.

The Constitution of India is, therefore, restricted in its application to the State only to the extent it is applied under Article 370.
He added that after the Constituent Assembly of the State had taken important decisions referred to immediately above, it was deemed necessary to receive the Concurrence of the Indian Government.

Accordingly, the representatives of Kashmir Government conferred with the representatives of Indian Government and arrived at an arrangement.

This arrangement was later on known as the “Delhi Agreement, 1952”. The main features of this agreement were:

(i) in view of the uniform and consistent stand taken up by the Jammu and Kashmir Constituent Assembly that sovereignty in all matters other than those specified in the Instrument of Accession continues to reside in the State, the Government of India agreed that, while the residuary powers of legislature vested in the Centre in respect of all States other than Jammu and Kashmir, in the case of the latter they vested in the State itself;

(ii) it was agreed between the two Governments that in accordance with Article 5 of the Indian Constitution, persons who have their domicile in Jammu and Kashmir shall be regarded as citizens of India, but the State legislature was given power to make laws for conferring special rights and privileges on the ‘state subjects’ in view of the ‘State Subject Notifications of 1927 and 1932: the State Legislature was also empowered to make laws for the ‘State Subjects’ who had gone to Pakistan on account of the communal disturbances of 1947, in the event of their return to Kashmir;

And then this article i.e. 35-A was incorporated in the constitution of India. This article however, does not empower the State Legislature to disqualify a person, whether a man or a woman, from being permanent resident of the State. No legislature either that of the Union or the State can seek protection of this Article while excluding a section on permanent residents from that statute on any ground much less on the ground of the sex. The Bill introduced in the Assembly in no way define any class of persons as permanent residents but in fact defined a class of persons who upon the existence of a certain contingency would loose that status.

Under the garb or cloak of Article 35-A it cannot be said that any law made on the subject of the permanent resident is beyond the scope of judicial review. It is true that the question of justiciability of the legislation would arise only when the law is passed by the legislature and challenged in the Constitutional Court but it is equally true that the legislature should not adventure to make a law which ex-facie is unconstitutional and cannot be sustained.

The legislature being the representative of the people can and should not waste either the public time or the State expenditure in making and enacting redundant laws. Such a course is suggested for the development and nourishment of the State organs in a developing democracy, as our country is.

Since, fundamental rights contained in Part III of the Constitution of India are also available to the permanent residents of the State, this interpretation created hostile discrimination on grounds of sex only.
The issue was raised specifically in a number of Writ petitions and Letters Patent Appeals in the High Court of Jammu and Kashmir. In a batch of petitions, State of Jammu and Kashmir v. Dr.Sushila Sawhney, LPA 29 of 1979, etc., a reference was made to the Full Bench to settle the following issue:-
“Whether the daughter of a permanent resident of the State of Jammu and Kashmir marrying a non-permanent resident loses her status as a permanent resident of the State of Jammu and Kashmir, to hold, inherit and acquire immovable property in the State?”
A Full Bench of the High Court by its judgment dated October 7, 2002 answered the issue in the negative.
The Full Bench finally concluded:
“In view of the majority opinion, we hold that a daughter of a permanent resident marrying a non-permanent resident, will not lose the status of permanent resident of the State of Jammu and Kashmir.”

Thus, the grave discrimination which was being faced by the daughters of permanent residents on their marriage to the non-permanent residents was given a decent burial. The judgment has been lauded by the jurists and human rights activists as “most fair” and “just” and totally in accord with the doctrine of equality and non-discrimination on the ground of sex as envisaged by the Constitution of India. Not satisfied with the Full Bench Judgment of the High Court, the State Government filed a special leave petition in the Supreme Court of India, which later on they withdrew, after notice had been issued but without granting any order for stay of the operation of the judgment. Possibly, it was realized by the State Government that the chances of success of the S.L.P. were rather remote, since there existed no law prescribing any disqualification of a woman state subject of losing that status merely on marriage with a non-state subject who was otherwise an Indian Citizen. That apart, section 22(d) of the State’s Constitution, though only a part of the Directive Principles, does lay down that, “the State shall endeavour to secure to all women……. the right to full equality in all social, educational, political and legal matters” and therefore, the S.L.P. was withdrawn, avoiding a final verdict of the Supreme Court on the issue.

However, with a view to continue with the earlier situation of preventing such married woman of enjoying the benefits to which a permanent resident of the State is otherwise entitled to, the Government of Jammu and Kashmir, headed by Mufti Mohd. Sayed, introduced the Jammu and Kashmir Permanent Resident (Disqualification) Bill, 2004, in the State Legislature. It was aimed at setting at naught the basis of the Full Bench Judgment.
The Bill was hurriedly passed in the Legislative Assembly within a record period of “six minutes” (from the state of introducing the Bill to it voting!). However, when women activists in the country and other organizations, raised hue and cry calling the legislation a ‘fraud’ on the Constitution and an assault on the rights of women, the Bill earlier passed by the Legislative Assembly could not be got approved by the State Government from the Legislative Council and was, thus, ultimately defeated. It died a natural death. Thus, for the present at least this chapter is closed.

The special rights and privileges or permanent residents of the State are not static. The need may arise at any time to liberalize them. The importance of the fact that the Constitution of Jammu and Kashmir enables the State Legislature to define and amend such rights and privileges becomes obvious in the context.

The Constitution of Jammu and Kashmir, apart from conferring special rights and privileges on the permanent residents of the State, does not contain any declaration of fundamental rights, but by reference applied with variations the Fundamental Rights under the Constitution of India. Section 10 of the Constitution of Jammu and Kashmir provides that permanent residents of the State will have all the rights guaranteed to them under the Constitution of India as applicable in the State under the Constitution (Application to Jammu and Kashmir) Order, 1954, vide section 2 (4).
The critical question that arises is: what is the effect of the addition of the Second Proviso to Article 368(2) on the power of the Indian Parliament to abolish Article 370 by an amendment to the Indian Constitution?

The Second Provison states that no amendment shall have an effect on J&K unless it is applied to J&K by a Presidential Order under Article 370(1).

It is important to note that if the objective of the Second Proviso was to prevent a straight-forward abolition of Article 370 by amendment of the Indian Constitution through Article 368, such a critical objective would have found direct and express mention. Instead, all that the Proviso states, is that any amendment made to the Indian Constitution shall apply to J&K only pursuant to a Presidential Order. The absence of any express requirement of consent from the J&K State Legislature is stark and prominent.