On Monday the Supreme Court will decide whether an illegally inserted provision in the Indian constitution, Article 35A, that passed off as legal for decades can continue to enjoy a safe ride, for all its discriminatory provisions
New Delhi: MyNation broke the story in the night of Friday that the Union home ministry had ordered the deployment of 100 companies of paramilitary forces in Jammu and Kashmir. MyNation further spoke of the possibility of the Narendra Modi government bringing an ordinance to repeal Article 35A in the event that, on Monday, the Supreme Court turns down the petition challenging the provision.
The Union home ministry took many by surprise. More so because JKLF's Yasin Malik was arrested from his house in the deep of the night while Mirwaiz Umar Farooq and Syed Ali Shah Geelani were put under house arrest. Sources say all separatists may be flown out of the state.
The police have, in the meantime, launched a massive crackdown on Jamaat-e-Islami (JeI). The police have either detained or arrested some of the top separatist leaders including chairman Abdul Hamid Fayaz. Choppers are hovering over Srinagar. Any leave earlier granted to a paramilitary jawan deployed in the Valley stands cancelled.
What is Article 35A?
This controversial provision in the Constitution empowers the state's legislature to frame laws that cannot be challenged on the ground of violation of the right to equality of citizens in other states. It cannot be challenged on the basis of any other right under the Constitution. For instance, one cannot challenge Article 35A, complaining that it discriminates between regions, in a high court outside Jammu and Kashmir. This, even if one faces brazen discrimination in jobs or scholarships or even when trying to buy a home in the Valley.
Why Article 35A is discriminatory?
The primary basis upon which the contentious article is challenged in the Supreme Court is the premise that it is against the grain of the Constitution. In effect, Article 35A creates a Constitution within the Indian Constitution!
The article arbitrarily defines who is a 'permanent citizen' of Kashmir, who then have all the rights and privileges. It…
1. bars 'outsiders' (Indians who are non-Kashmiris) from settling or buying property in the state
2. denies equal rights in education as well as employment to the following groups:
(b) safai karmacharis who came from Punjab, West Pakistan
(c) refugees who came to India at the time of Independence and
(d) Kashmiri women who marry outside the state
The discrimination extends to public welfare and government scholarships. Moreover, the 'permanent residents' of Kashmir get all the constitutional privileges in the rest of India.
To sum it up, a non-resident Kashmiri can become the Prime Minister of India, but he does not qualify to be even a peon in Jammu and Kashmir.
Primary reason for challenging Article 35A in Supreme Court
Article 35A was inserted in the Constitution in 1954 by way of a Presidential Order. The petitioner has argued that Article 35A was unconstitutionally added to the Constitution.
The Constitution, as desired by Babasaheb Bhimrao Ambedkar, does not allow the President to add or change its existing provisions. Article 35A, which the then President of India added through an order, can be amended by the President only if Parliament approves the changes. In the Indian way of constitutional functioning, Parliament is supreme, not the President. But bizarre as it may sound, Article 35A was added without getting Parliament's nod. So, technically speaking, the article is illegal.
It is D-day on Monday when the apex court will decide whether an illegally inserted provision in the Constitution that has been deemed legal for decades can continue to enjoy a safe ride or it is time Kashmir let go of its special privileges. Either way, the verdict is going to evoke strong emotions either in the Valley or in the rest of India. And with the general elections just a few months away, striking it off by bringing an ordinance is also not an impractical probability for the Modi government.
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Last Updated Feb 23, 2019, 6:26 PM IST