4th December, 2013

Posted on December 04, 2013, No Comments admin

Narendra Modi’s speech at Jammu invited Omar Abdullah’s response. After a long time, Article 370 is being seriously debated in this country. An ill-informed debate had earlier linked the issue of Article 370 to a secular v/s non-secular debate. Article 370 has nothing to do with Secularism. My own study on the subject has revealed a very interesting dimension as to how Article 370 can turn into an instrument of oppression and discrimination against Indian citizens.

Article 370 is a special provision created only in relation to the State of Jammu & Kashmir. It is a temporary provision. It relates to the distribution of power between the Centre and the State. The Central List in relation to Jammu & Kashmir was a small one. Most powers vested in the State Legislature. If any power had to be transferred from the Centre to the State, it required the concurrence of the State. Article 370 states as under:-

370. Temporary provisions with respect to the State of Jammu & Kashmir

(1) Notwithstanding anything in this Constitution,

(a) The provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) The power of Parliament to make laws for the said State shall be limited to

(i) Those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) Such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation :- For the purposes of this article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948;

(c) The provisions of Article 1 and of this article shall apply in relation to that State;

(d) Such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

Pursuant to the provisions of Article 370 (1) (d) the President of India by an order (not legislation) notified the provisions of Article 35A of the Constitution. The provisions of Article 35A read as under:-

35-A. Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu & Kashmir, and no law hereafter enacted by the Legislature of the State,

(a) Defining the classes. of persons who are or shall be, permanent residents of the State of Jammu & Kashmir; or

(b) Conferring on such permanent residences any special rights and privileges or imposing upon other persons any restrictions as respects:-

(i) Employment under the State Government;

(ii) Acquisition of immovable property in the State;

(iii) Settlement in the State; or

(iv) Right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provisions of this part.”

There are thus citizens of India who have not been conferred the status of State subjects. The phrase ‘State subjects’ and ‘permanent residents’ are used interchangeably. Millions of people migrated to India in 1947. Those who settled in other parts of India have all the constitutional guarantees available to them. They are entitled to all fundamental rights available under the Constitution of India to the citizens. The unfortunate ones who migrated to the State of Jammu & Kashmir have been conferred citizenship of India. They can vote in national elections. They can hold property anywhere in India. However, they have not been conferred the status of being State subjects under Article 6 of the Jammu & Kashmir Constitution. Being citizens of India, they are discriminated against. They cannot vote or contest elections of the Assembly, Municipality or Panchayats in the State. They cannot get a job in the State. They cannot acquire property in the state. Their children are not entitled to admission to colleges as State subjects. The bright ones amongst them cannot even get scholarship or any other type of aid from the State. Article 35A of the Constitution of India executively inserted pursuant to Article 370 (1) (d) excludes the provision of ‘this part’ of the Constitution. ‘This part’ of the Constitution refers to ‘Part III.’

The effect of this would be that laws inconsistent with fundamental rights would be valid qua these persons. These citizens of India are not entitled to the protection of Article 14 (equality), Article 15 (prohibition of discrimination on basis of religion, caste, race or place of birth), Article 16 (Equality of opportunity in matters of public employment and reservations), the fundamental rights under Article 19 including the right to free speech and the right to life and liberty under Article 21. They are not entitled to the freedom of practice and propagation of religion under Article 25. They are also not entitled to protection of interests available to minorities under Article 29 and 30. The non-State subjects, who are citizens of India, who live in Jammu & Kashmir by virtue of Article 35A, are denied these protections. The pre 2002 position in relation to daughters who marry outside the State that they would lose their right of inheritance is based on the authority to discriminate against citizens of India, between citizens of India and State subjects which Article 35A confers.

Should a provision like Article 35A which exists only because of Article 370 have place in any civilized society? It is oppressive against citizens of India. It is discriminatory and violative of fundamental rights. Article 35A was inserted in 1954. On a bare reading, it violates the basic structure of the Constitution. I wonder if its constitutional validity will be challenged at some point of time.

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