{ The next important task of India is to take back PoK. that is illegally occupied by Pakistan and to take back PoK we need first to withdraw the illegal Nehru petition to UNSC in 1947 Dec. The LoC then becomes illegal and thus Indian forces can cross over. Muzzafarabad is easy to take. }
The recent step taken by the Modi Government to repeal Article 35A, has been questioned by many people and political parties for lacking any semblance of due process. On the other hand, many have hailed the decision as an end to years of arbitrary rule. Even legal experts have disagreed on the legality of the decision. With contrary opinions, it is difficult to resist from reflecting upon these constitutional changes that have flocked all media channels and corridor discussions over the past few days. Interestingly enough, these developments also coincide with India’s 73rd Independence Day, when every Indian citizen is reminded about the struggles faced by the freedom fighters that had valiantly fought against the British Empire and its colonial rule. The coincidence is remarkable as Independence Day reminds us about the historical significance of the rights enjoyed by Indians in a free and democratic India. The discussion around Article 35A had much to do with these very rights.
The recent step taken by the Modi Government to repeal Article 35A, has been questioned by many people and political parties for lacking any semblance of due process. On the other hand, many have hailed the decision as an end to years of arbitrary rule. Even legal experts have disagreed on the legality of the decision. With contrary opinions, it is difficult to resist from reflecting upon these constitutional changes that have flocked all media channels and corridor discussions over the past few days. Interestingly enough, these developments also coincide with India’s 73rd Independence Day, when every Indian citizen is reminded about the struggles faced by the freedom fighters that had valiantly fought against the British Empire and its colonial rule. The coincidence is remarkable as Independence Day reminds us about the historical significance of the rights enjoyed by Indians in a free and democratic India. The discussion around Article 35A had much to do with these very rights.
A long history stands witness to the Indian struggle for independence against the atrocious British Raj and its imperialistic policies. Although itmay not seem necessary to recall the arbitrary policies adopted by the British Rule to suppress individual freedoms and liberties, it is incumbent to understand that these historical experiences and the scourge of World War -II, nudged the founding fathers of our Constitution to recognize the human rights guaranteed to every person on his birth by incorporating the chapter on Fundamental Rights in the Indian Constitution.In fact, the democratization and establishment of responsible governments was one of the major steps in the integration of the Princely States with the Indian Union in 1947. Most representatives from the Princely States were in agreement on the importance of these rights for their subjects.
However, for Jammu and Kashmir, the situation was radically altered. On the commencement of the Indian Constitution, only Article 1 and 370 applied to Jammu and Kashmir. Clearly, Part III of the Constitution dealing with fundamental rights did not extend to Jammu and Kashmir on the commencement of the Constitution. For applying the remaining provisions including Part III, the process under Article 370(1) of the Constitution, empowering the President to apply the provisions of the Constitution to Jammu and Kashmirwas used. Ordinarily, it would be expected that the President must have applied Part III to the State when the provisions of the Constitution were first extended to the State in 1950. Surprisingly, the position was quite opposite and rather anomalous. Part III was completely obliterated in its geographical application to the State of Jammu and Kashmir — implying that no Indian citizen would enjoy fundamental rights in Jammu and Kashmir.
Four years later, the President issued a constitutional order where the chapter on Fundamental Rights was applied to Jammu and Kashmir for the first time. However, while applying the chapter on Fundamental Rights, radical modifications — much against the basic structure of the Constitution were made to the scheme of Part III by Nehru’s Government.It seems these modifications were inspired by and applied as a corollary to ratio handed down by the Supreme Court around 1951 in Shankari Prasad Singh Deo v. Union of India where it ruled that Parliament enjoyed unlimited powers to amend the Constitution and the fundamental rights provided therein.
Among the several modifications made to Part III of the Constitution as applied to the State, the most contentious addition was Article 35A that provided judicial immunity to laws enacted by the State Legislative Assemblyfor giving exclusive rights and privileges to permanent residents in respect of employment, purchasing immovable property, settlement within the State and scholarships for students, even if such laws trample upon the fundamental rights of citizens other than permanent residents.
The direct effect of such a provision was startling in as much the entire gamut of fundamental rights of an Indian citizen who is not a permanent resident were practically rendered unenforceable in the State, even where the State legislation infringed upon these rights. Thus, no judicial remedy either under Article 32 or 226 of the Constitution was open for a citizen subject to an infringement of his rights.Given the drastic consequences that flew from the provision, it was unambiguously clear that Article 35A violated the basic structure of the Constitution.
Even Supreme Court’s jurisprudence on the basic structure doctrine supports this view. In Minerva Mills v. Union of India, the Supreme Court, in a slightly different but not entirely inapposite situation had the occasion to consider the constitutional validity of Article 31C of the Constitution. Article 31C was inserted by the Parliament through the Forty-Second Constitutional Amendment to grant judicial immunity to legislations from Article 14 and 19 of the Constitution if such legislations were enacted to give effect to Directive Principles of State Policy under Part IV of Constitution. After carefully deliberating on the actual effects of Article 31C, the Supreme Court ruled that the declaration providing judicial immunity to such legislations fell foul of the basic structure of the Constitution.
This ratio applies with an even greater force to Article 35A as the provision not only prevents the nature of legislations mentioned therein from attack on Article 14 or 19 but also from all other provisions of Part III of the Constitution. As the object behind the enactment of Article 35A was to save laws (as the heading indicates), which cannot really be saved under Part III of the Constitution, it is extremely difficult to assert that such a provisionthat is prone to misuse should be sustained constitutionally in any democratic polity that has it foundations in universally recognized civil rights and human liberties.
In fact, the provision became a constitutional sanction for the State Legislative Assembly to make exclusionary laws that deprived many weaker sections of the society such as the Scheduled Castes and Scheduled Tribes of their civil and political rights. Generations of groups who migrated to Jammu and Kashmir in the aftermath of the partition were forced to live without access to education, employment and shelter — a life without dignity. None of them were either heard or considered but simply condemned to the life of a vagabond.
Therefore, the repeal of a draconian provision such as Article 35A is not merely a poll promise made by the BJP Governmentbut a restatement of the basic structure of the Constitution — affirmed by the Supreme Court. The demise of such an anachronistic idea should not be viewed as a violation of the due process but an acknowledgement of the principle that rights cannot be taken away except in accordance with the procedure established by law. Its end earmarks the dawn of a new period in the history of Jammu and Kashmir where the solemn rights reserved to the people of this country by the Constitution are realized and fulfilled.