The violation of fundamental rights by article 35A - Seeker's Thoughts

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Sunday, 2 September 2018

The violation of fundamental rights by article 35A


Introduction: History background 
Article 35A was incorporated in to the Indian constitution in 1954 by an order of the then president Rajendra prasad on the advice of the Jawaharlal Nehru’s cabinet.

 The controversial constitution (Application to Jammu Kashmir) order of 1954 followed the 1952 Delhi Agreement which was entered into between Nehru and Prime Minister of Jammu and Kashmir sheikh Abdullah. 

The article provided some special benefits to the State Legislature of Jammu and Kashmir. According to this the State legislature could define who were "permanent residents". It also empowered state legislature to decide the special privileges for these permanent residents. 
Or, Article 35A is a provision incorporated in the constitution giving the Jammu and Kashmir Legislature the authority to decide who all are ‘permanent residents’ of the state and confer on them special rights and privileges in public sector jobs, acquisition of land or property in the state, scholarships and other public and welfare.
What is the controversy regarding Article 35A?
Article 35A – empowers the legislature of Jammu and Kashmir to:
a)     Define classes of people who shall be called ‘permanent residents’ of Jammu and Kashmir state.
b)     Grant special rights and privileges to those permanent residents of the state like:
1-      Only permanent residents can be employed in state services.
2-     Only permanent residents can buy immovable property within state.
3-     Only permanent residents can settle in the state.
4-     Only permanent residents can avail scholarship and other benefits provided or offered by the state government.
As a negative outcome, if the daughter of a  permanent resident of Jammu and Kashmir marries a person from other state that means outside from the State of Jammu and Kashmir, in that case she would lose her permanent resident status of J&K state. Consequently, her children would no longer be categorised as residents of J&K and their claim to properties, education and services under the state would get terminated.
Also, West Pakistan refugees, who migrated to India and settled in J&K during the wars of 1965 and 1971 lack the status of permanent residents of the state. 
This denies them various rights as given by the state to permanent residents. In addition, the member of Valmiki samaj are entitled for the job of sweepers only by state subject laws.
Now the petitioners claim that this article of the constitution allows discrimination not only between people of J&K and the rest of India but also amongst people of J&K .This is a violation of Article 14 and 15 of the constitution where equality is given prominence to all Indian citizens. 
What are the challenges to it?
1-Article 14 of the constitution gives a fundamental right to equality before law. But 35A is heavily loaded in favour of males because after marriage woman loses her right to inheritance and equal treatment like man. She is deprived of states residence itself according to certain provisions as mentioned above. 
2-Outsider vs insider: while a woman from outside the state shall become a permanent resident on marrying a male permanent resident of the state. This again create a discrimination between outsider and insider. Marrying with the person of other state turns one stranger all of sudden where she is not even a resident of the land she lived at.
3-It gives a free hand to the state government and politicians to discriminate between citizens of India, on an unfair basis and give preferential treatment without reasonable debates.
 4 – Article 370 was only a temporary provision to help bring normality in Jammu and Kashmir and strengthen democracy in that state. The constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the constitution.
Significance of Article 35A: the other dimension
Article 35-A of the Constitution of India by itself does not create any right with any person but rather it protects state subject laws from being evaluated,  being violative of the right of equality guaranteed under Article 14 of the constitution of India.
Further, if article 35-A is declared as unconstitutional, it will only allow the courts to investigate the validity of the state subject Laws.
Way forward
Kashmir issue is one of the most famous and attention seeking issues till now. Kashmir and central government clashes have been on rise after hizbul mujahideen leader Burhan wani was killed by the Indian army. Hundreds of people are killed in clashes with armed forced regularly every year. This harms humans at both side as army men risk their lives, so are the protestors remain frustrated due to 'no solution' of their greivances. Peace talk is an urgent need between centre and state. Government should involve experts for negotiation from Kashmir government and representative of people.  The solution has to be political in nature.

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