Why Supreme Court should strike down subversive and discriminatory Article 35A
Jammu Kashmir Now | The facts and information abou   17-Jan-2019

Issuing threats is not an uncommon thing in India. Also, outrage against such threats, either in media or politics or social media platforms, depends on the location, context, religion and political outlook. Therefore, when the threats were issued because the Supreme Court has to decide on the discriminatory Article of the constitution of India i.e. Article 35A such outrage was not clearly visible anywhere. Moreover an IAS officer compared this controversial Article with the marriage contract between India and one of the states of India (J&K) undermining the democratic fabric of the country that sees the relationship of every state, with the centre, more than just a contract of marriage. Surprisingly, all the uproars, which are raised on every second issue, stay mum in this matter. Article 35A not only discriminates between one citizen, who is the resident of the state, from the other citizen of the country but also among the people living in the state. Be it West Pakistan Refugees, Gorkhas, OBCs, Women and Dalits of the state and the citizens from the rest of the country, all became the victims of oppression and discrimination through one stroke of the president in 1954.
Article 35A is often misquoted as the result of Delhi Agreement, 1952 but it is important to note here that Mr. Soz clearly mentioned in his latest book on Kashmir that Delhi Agreement was the statement made by Sheikh Abdullah and Pandit Jawaharlal Nehru in the constituent assembly of Jammu and Kashmir and the Parliament of India respectively. Therefore, calling it an agreement is itself wrong because no official document was signed between India and one of its states viz. Jammu and Kashmir, for this purpose.
Article 35A was challenged by the bunch of organisations in 2014 and they requested the Supreme Court of India to annul this unlawful and draconian constitutional provision, which was inserted in the constitution by ignoring Article 368. The contention in the appeal before the Supreme Court was that the president does not have the power to make any amendment in the constitution without involving the parliament in it. But in 1954 a presidential order added Article 35A in the constitution of India though the constitution of the country such overriding power to the president. It is important to note here that as per Article 368 of the constitution of India, any amendment should be passed by the parliament and the president would give assent to it. Unfortunately, it was not happened in case of Article 35A yet it remained in the constitution since 1954. Further, Article 60, which state that President must preserve, protect and defend the constitution of India, was clearly violated in this matter. In 1954, the president overstepped his authority and violated the constitutional provisions, which he was supposed to protect.
Surprisingly, this Article cannot be located either between Article 35 and Article 36 of the constitution or in the list of constitutional amendments but it is available in appendix. Strangely, many of the books on Constitution of India did not mention this Article in it. So, one cannot deny the fact that the political sanctions were given to do this fraud with the country. The commonly established practice and the rules to run the country were brazenly violated with impunity to insert Article 35A in the appendix. Astonishingly, it remained in operation and perhaps, majority of the Indians did not know about the very existence of this provision unless it was challenged in the Supreme Court. Moreover, challenging this unconstitutional provision has brought concomitant threats from separatists and the political brass alike. The level of tolerance that has been preached in the entire country is not preached to the separatists and political brass of Jammu and Kashmir, who are threatening that the country would face catastrophic consequences if the Article 35A would be tinkered with. The former CM of Jammu and Kashmir Mehbooba Mufti, who should have been moderate while commenting on 35A, even threatened that no one in Kashmir will hold the Indian flag if any adverse verdict on 35A comes. Unfortunately, neither media nor any so called lobby of liberals made any hue and cry against this intolerance that has been overtly expressed by certain class of residents of Jammu and Kashmir though it has been used as an instrument of oppression and discrimination.
Apart from the citizens of the rest of the country the victims of this fraud are Women, SCs, OBCs, Gorkhas and West Pakistani Refugees, who have been living in the state. In the state of Jammu and Kashmir a woman cannot marry the non-permanent resident of the state otherwise her spouse and children would not get the Permanent Resident Certificate (PRC) whereas the discriminatory provision allows a man to marry a non-permanent resident and the consequent extension of PRC to his spouse and children, which is clearly against the doctrine of gender justice. Clearly, many progressive thinkers close their eyes on this issue. Again a class of Dalits were brought in the state in 1957, for doing the job of a sweeper, from Punjab on the promise that PRC would be relaxed for them. But it is being ensured that their generation would not progress; therefore, their children were made eligible for the job of sweeper only, in the state irrespective of his or her qualification. Surprisingly, it seems that they have now been perceived as an outcaste and the violation of their rights is considered normal. Apart from them Gorkhas and West Pakistan Refugees (WPR) face discrimination because of this Article. The WPR migrated in the state in 1947 in the hope of a better future in a secular country yet they have not been given PRC, as a result they cannot vote in assembly and local bodies’ elections. Majority of these WPR are SCs and OBCs. The same is the case with Gorkhas, whose generations have fought for the state and the country but they remain at the bay in the state. Adding to their agony, they (WPR and Gorkhas) have not been given the piece of land, which they can call their own. On the question of Gorkhas and West Pakistan Refugees, no one make hue and cry because of the hypocrisy that it is the issue of Jammu and Kashmir.
In the entire country, the political parties raise the issues of Women, Dalits, OBCs and Refugees and make efforts to bring them into the mainstream of the society yet in Jammu and Kashmir they remain tight lipped because it may have not been suiting to their political agenda. Further, certain civil society organisations work for them in the entire country yet they do not utter a single word against the subjugation and oppression that is taking place in Jammu and Kashmir. The educational institutes discuss their issues yet in the context of Jammu and Kashmir they selectively discuss the agenda set by separatists. We can only hope that Supreme Court will take note of the hardships of these people who are the victims of this draconian provision and take appropriate steps to bestow on them that rightfully belongs to these people. Apex Court must demolish the wall of discrimination that has been created by this Article and justice must be delivered to the people whose generations have been facing discrimination till date.