Will NC Stop Dragging Legal Question On Art 35A Into Political Controversies?

6 mins read

Daya Sagar

Omar Abdullah former J&K Chief Minister / crown leader of J&K National Conference while speaking  in a local party function at Eidgah  Srinagar  on this 25th July  is quoted  to have affirmed that National Conference has faith in the Supreme Court of India, not only that  has in a way gone to the extent of suggesting that Government of India too should have faith in the final decree of the Supreme Court of India and since the  petitions challenging the constitutional validity of Articles 35A and 370 are sub-judice  the Centre should wait for the verdict.

Of Course he had in mind the references made regarding “abrogation” of Art35A / Art 370  of COI  by some BJP leaders in their public statements . Though late but still it is appreciable that  what should have been the principled stand and conviction of a  political party like National Conference  atleast right since  2015 itself when  petitions like the one  questioning among other things the legal / constitutional valid existence  particularly of “Art35A”  in Constitution of India  was filed in Supreme Court of India  has atleast now been expressed by Omar Abdullah.

It was on 28 July 2017 that the then J&K CM Mehbooba Mufti had publically , while making reference to Art35A which is placed with Constitution of India  in Appendix-I  and question on the very existence of Art35A was then well before the Apex Court, had said :: 35A ke saath shaed-shaad, yeh jo sahib mere paas samne baithe  hain  ya mein baithi hoon , jo bahaan hamari parties … jo bahaan par national  flag ko le ke khade hote hain , sare risk ke babjood hamare workers, in ke bhi hajaron mare gaye .. hamare bhi mare jate hain , toe mujhe..  jeh  batane mein koyi gurej nagin hai ki oos jhande  ko kanda dene bala koyi nahin hoga , let me make it very clear ! toe aap ko oos ko ek special treatment  dena  hai , agar aap .. jahan log azadi maang rahe hain  .. doosari cheejein maang rahe hain .. bahaan aap yeh bolein ge ki aap ke paas jo hai  vo bhi ham sheen leinge  toe kon chale ga  is system mein , koyi nahin chale ga” ::

 At that time it would have been worth appreciation had Omar Abdulla or  Dr. Farooq Abdullah advised Mehbooba Mufti for not  dragging a legal question into  political forums / arena but instead it was on 7th August 2017 that Dr. Farooq Abdullah, too had been quoted as having said while talking to media  in Srinagar : “It   { Art 35A) is not just a Kashmir centric issue as they ( BJP &RSS) are trying to project it. It was very important to discuss the issue of Article 35A and its implications on the State, and all its three regions-Jammu, Kashmir and Ladakh, so that people understand as to why we are against its abrogation, which gives us the basic right and scrapping it will take away that basic right from us .Big responsibility on shoulders of those who have always worked in direction of keeping the state away from regional frenzy politics. It was Maharaja Hari Singh who in 1927 had brought in the ownership laws of the state, for welfare of state subjects …The Amarnath land row agitation in 2008 was nothing as compared to the explosive repercussions it ( Art 35A issue )  is bound to create in the State … we have also decided to appeal the democratic voices and all credible sections of the society in the country to understand the dangers ahead and the serious implications of removing Article 35A. This will be a dangerous move, dangerous for the state and as a country as a whole,”: unquote::  Had leaders like Omar Abdullah not dragged the Art 35A issue into political debates / political controversies like in a way endorsing the  claims  of Mehbooba Mufti describing it as a constitutional tool for preserving the muslim majority character of Kashmir  and instead had left the issue for Supreme court to decide it would  have also helped over last 4 years to take  forward the process of restoration of peace and stability in J&K .

Any how let us hope that  leaders like Omar Abdullah truthfully mean what has been said on this 25th July and extend full cooperation to government of India for undoing the myths/ controversies created over the years in Kashmir valley as regards the J&K being total India; and ofcourse making all parties to work for undisrupted proceedings before the supreme court of India.

But National Conference leadership has still to do a lot to prove that they truthfully believe in leaving legal issues like question of the very ‘existence’ of Art35A to Supreme Court of India since it has only been just three days after the ‘advisory’ issued by Omar Abdullah to ‘BJP’ /GOI that Mehbooba Mufti  has again on 28th July 2019 while celebrating the 20th raising day   of J&K PDP in a way thrown open challenges ( to GOI/ even SC) , quote “ 35A ke saath shaed-shaad karna barood ko haath lagane ke barabar hoga … jo haath 35A ke saath shaed shaad karne ke liye oothein ge vo haath hi nahin saara jism hi jal kar khaak ho jaeye ga…” unquote , and no any statement has come atleast from Dr Farooq Abdullah/ Omar Abdullah disowning/ condemning  the challenges that have been  thrown by the J&K PDP chief.

So far, Art35A has   been taken as valid and legitimate article of Constitution of India but /and now it is the legitimacy of its very existence that has been / is being put under question mark before the supreme court of India.  But we will  have to go with the opinion of the Apex court  where petitions have been made by some   for examining  among other things  the contents of the C.O 48 of 14 May 1954 as at Clause -4-J (After article 35, the following new article shall be added, namely:— “35A. Saving of laws with respect to permanent residents and their rights.— …  ) and the authority that the President of India draws from  / is conferred  on President of India by Art-370 (1-d) in the context of adding a new article in Constitution of India by amending the COI. The  charge is : : Art 35A is a “New Article” and not simply an existing provision of COI with  some exceptions & modifications :  Use of Clause -1 sub- Clause –d  of Art 370 for amending the Constitution of India to add a new article by the President of India is Questionable. ::

Need is to take Art35A out of political domains and limit it only with in legal domain ( as far as possible).

Going by the ground realities it would not be wrong to say that over the years   Art35A ‘of’ constitution of India (COI) has been more used to project ‘distances’ between J&K State and India rather than using it  for the real good of even some ‘classified Indian citizens’( Indian citizens defined as the permanent residents of J&K -PR of J&K-   in Section-6 of J&K Constitution) since inspite of regular suggestions having been made by persons like the writer those who have so far held the reins of governance have not made corrections to even the wrongs surviving under the constitutional protection of Art35A that are also   damaging  the interests of permanent residents of J&K ((like i. even violated human rights of  “women permanent residents of J&K” regarding ‘choosing a life partner’ ii. there being no reservation for ST  in the Legislative Assembly iii. the seats in J&K assembly reserved for SC still only 7  after total was increased to 87 iv.5300 Families of 1947 POJK DPs  State Subjects of J&K residing in other Indian states have been in a way disowned by state  v.  inadequate professional / qualified staff in J&K Medical Colleges  since non PR can not join vi. the Delimitation of assembly segments deferred to post 2026 census i.e. after 2031 AD denying proper re-fixation  of representative  of nearness {  THE CONSTITUTION OF JAMMU AND KASHMIR (TWENTY-NINTH AMENDMENT) ACT, 2002  (23rd April_ 2002) ( Section 47(3) of J&K Constitution ) vii. Sections 8 and 9 Of J&K constitution have not been used for 60 years for betterment of PRs. viii denying PRs of J&K students right to apply against thousands of MS/MD seats in national pool by not contributing a few seats in the National pool PR ix. panchayati raj in the real spirits still a distant dream.

Affairs in case are handled rising above political gamesmanship, one need not worry about what “will happen in J&K” in case Art 35A, Art 370 of the COI are treated for their modification/ amendment/ deletion / rescinding in the  interest of the spirits of the constitution of India and procedures there in .

As regards Article -35A of constitution of India to me the question is not of abrogating this article or deleting this article from COI , the question is does this Article constitutionally even exit? So in case ‘this’ opinion is upheld by the apex court then the question is not of deleting or abrogating Art35A but it is more of rescinding it since constitution of India can not be amended to add a new article namely Art-35A only  by a presidential order as has been done in the case of Art35A since Art370 (1d) does confer any authority on President of India worth amending the Constitution of India so as to add a new article.

( * Daya Sagar is a Sr Journalist & analyst of J&K Affairs. [email protected] 9419796096)

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