Not only that when ever and where such drawbacks/ lacuna have been appointed out to the J&K State Government or/ and the State Legislature as regards their faltering approach towards administrative / legislative issues that appeared anti people / anti basic fundamental natural justice the Government / Legislature have been showing no intentions for taking corrective measure and one could not even hopefully approach the High Court / Supreme court since Art35A is / was quoted as a constitutional protection to even “ bad provisions” where ever made by the State if they violated the fundamental rights of an Indian citizen who may be even classed as permanent resident of J&K like has been/ is the case with the women (PRoJ&K) , ST (PRoJ&K), SC (PRoJ&K) and the like. Even supreme court had shown helplessness quoting existence of Art 35A when an Indian citizen who was a non (PRoJ&K) had complained of violation of his fundamental rights.

 

So, in the greater public interest a need had cropped up for finding out the way out to save the rights of Indian citizens ( even some of whom are (PRoJ&K) and while options / remedies were being probed it was sensed that Article 35A technically & legally even does not qualify to be an Art of Constitution of India. Once the question on the very legitimate existence of Art-35A as an article of COI of India was raised instead of focusing on the good or bads of the Art-35A, like some had done in the past, those political leadership that had so far survived on the distancing ideology based politics sensed the legal implications worth getting disturbed and instead taking to legal defence started making attempts for pushing the “issues” raised from legal domains to instead political domains so desperately and in an illogical manner trying to link the existence of Art-35A ‘as an article’ of COI with the delayed accession of the then Indian princely state of J&K as also with (i) the J&K being muslim majority state in 1947 , (ii) for preserving the muslim majority character of Kashmir valley as a commitment to Kashmiries for their agreeing to come with India. Kashmir valley leadership ( that held reins of government ) has even after 2016 gone to the extent of even throwing threats challenging the “integrity ” of India in case the Apex Court accepts the petitions on Art 35A as regards the challenge to its legitimate existence. Such behavior of the so called “mainstream” Kashmir Valley centric local leadership simply exposed their intentions, their motives behind attempting to drag a purely legal issues to political rallies & political issue and unconcernedness even for the cause of Indian citizens who are categorised (PRoJ&K) in Section-6 of J&K Constitution. Had it not been so the J&K political leadership, atleast from NC & PDP, would have atleast gone for making corrections/ getting made corrections to the wrongs done to atleast (PRoJ&K) under the cover of Art-35A as had been regularly requested by the writer through notes / write ups so regularly even after 2014 but that has not been done.

 

 

 

So in the interest of the ‘subjects’ of J&K and for peace & stability in J&K the questions and discussions regarding “Art35A” as an article of COI should be limited only to the origin / ‘birth’ of Art 35A . Art-35A was added in the COI as a ‘New” Article neither by the Constituent Assembly of India ( COI) nor by the Parliament of India (under Art368) but is taken to have been added simply by an order of the President of India ( C.O 48 of 14 May 1954) and that could be surely said as an illegitimate route/ process/action. This Article is neither part of Art35 nor does this article exit in the main body of the constitution of India before Art 36. In my opinion even the Constitution of India could be named as the first victim of the 14th May 1954 Constitution ( Application to Jammu & Kashmir ) Order that has been issued unauthorisedly in the name of Clause-1(d) of Art-370 by the President of India for amending the COI so as to add a new Article namely “Art 35A” after Article35 which other wise could be done legally only by Parliament of India under the constituent power vested in Art-368 of COI.

 

In the our opinion Article 35A technically & legally does not qualify to be an Art of Constitution of India and has already done enough damage & looking at the way ‘governments’ have handling the related issues it may not be wrong if some one says that in a way it has been indirectly ‘used’ more by some for promoting separatist ideologies.

 

No doubt , so far, Art35A has been taken as valid and legitimate article of Constitution of India and now it is the legitimacy of its very existence that has been / is being put under question mark. But we will have to go with the opinion of the Apex court where petitions have been made by some for the Apex Court examine 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.

 

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