Jammu and Kashmir (J&K)
witnessed a hike of more than 166 per cent in civilian causalities in 2017 from
a year ago, but security forces were successful in killing 42 per cent more
terrorists during the year, the Union home ministry said in its annual
report. As per the report, 342 terrorist strikes took place in J&K in
2017, claiming lives of 40 civilians and 80 security forces personnel while 213
terrorists were killed.
In wake of the ongoing turmoil in
the state, President Ram Nath Kovind on June 20 approved the
imposition of Governor’s rule in J&K with immediate effect based on the
Governor Narinder Nath Vohra’s recommendations of to the President of India for
the imposition of Governor’s Rule under Section 92 of the Constitution. The
decision came a day after the three year Jammu and Kashmir government collapsed
on June 19 with the BJP ending its alliance with the Mehbooba Mufti-led PDP
government.
The split between BJP and PDP was
wracked by bitter political feuds and worsening security challenges. The
BJP blamed the PDP for failing to improve the security conditions in the
Kashmir Valley. The BJP national general secretary Ram Madhav cited last
killing of senior journalist Shujaat Bukhari in the heart of Srinagar in the
highly secured area of Press Enclave by unidentified gunmen. He also cited
examples of growing acts of “terrorism, violence and radicalisation” in the
state over the past few years and said that the party was left with no other
option, but to discontinue its alliance with the PDP.
Expectantly, after bringing
Governor’s rule in Kashmir, armed forces will get free hand in fighting
terrorism, stop stone pelters and bring permanent normalcy in the state. The
government may also take steps to revoke/modify article 370 by keeping other
countries out of picture.
The Center on August 21 inducted a
political appointee as the Governor of J&K, transferring Bihar incumbent
Satya Pal Malik to replace former bureaucrat N.N. Vohra, who had held the job
for more than 10 years, setting off speculation about political moves in the
offing in the troubled state.
In order to restore normalcy in the
state, Jammu and Kashmir State Administrative Council (SAC), headed by Governor
Satya Pal Malik, on September 7 announced that elections to municipal bodies
would be held in October this year, followed by panchayat polls. The municipal
polls will be conducted in four phases and polling will be held between October
1 and 5. Panchayat elections will be conducted in eight phases between November
8 and December 4.
Poll Boycott
The Hurriyat separatists called for
a complete boycott of the upcoming panchayat and civic body polls. “We once
again make a fervent appeal to the freedom-loving people of Kashmir to observe
a complete election boycott,” said a statement of joint resistance leadership
led by Syed Ali Geelani, Mirwaiz Umar Farooq and Yasin Malik.
Boycotting the polls, NC president
Farooq Abdullah said on September 8: “How can we go to our workers and ask them
to come out to vote? First do justice to us and clear your (Centre) stand (on
Article 35-A). If your plan is that (weakening J&K’s special position),
then our ways are separate. Then we cannot have elections. Not only these
(urban local bodies and panchayat) polls, but we will also boycott the assembly
and parliamentary elections then.”
Former J&K chief minister and
PDP chief Mehbooba Mufti followed the NC and said they would not contest the
polls, as the prevailing situation was not favourable. “We will go to any
extent to protect Article 35A,” said Mufti. She said the people of the state
have “sacrificed a lot” and no one can fiddle with the validity of Article 35
A.
Article 35-A
Article 35-A, which was incorporated
in the Constitution by a 1954 Presidential Order, accords special rights and
privileges to the citizens of J&K and denies property rights to women who
marry those from outside the state. The provision, which leads to such women
from the state forfeiting their right over property, also applies to their
heirs. It has been challenged in the Supreme Court.
Article 35A is a provision
incorporated in the Constitution giving the Jammu and Kashmir Legislature a
carte blanche to decide who all are ‘permanent residents’ of the State and
confer on them special rights and privileges in public sector jobs, acquisition
of property in the State, scholarships and other public aid and welfare. The
provision mandates that no act of the legislature coming under it can be
challenged for violating the Constitution or any other law of the land.
Article 35A was incorporated into
the Constitution in 1954 by an order of the then President Rajendra Prasad on
the advice of the Jawaharlal Nehru Cabinet. The controversial Constitution
(Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi
Agreement entered into between Nehru and the then Prime Minister of J&K
Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of
Jammu and Kashmir.
The Presidential Order was issued
under Article 370 (1) (d) of the Constitution. This provision allows the
President to make certain “exceptions and modifications” to the Constitution
for the benefit of ‘State subjects’ of J&K.So Article 35A was added to the
Constitution as a testimony of the special consideration the Indian government
accorded to the ‘permanent residents’ of J&K.
The parliamentary route of lawmaking
was thus bypassed when the President incorporated Article 35A into the
Constitution. Article 368 (i) of the Constitution empowers only Parliament to
amend the Constitution. So did the President act outside his jurisdiction?
Hence, Article 35A is void because the Nehru government did not place it before
Parliament for discussion. A five-judge Bench of the Supreme Court in its March
1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the
President’s powers under Article 370 to ‘modify’ the Constitution. Though the
court observes that the President may modify an existing provision in the
Constitution under Article 370, the judgment is silent as to whether the
President can, without the Parliament’s knowledge, introduce a new Article.
This question remains open.
A writ petition filed by NGO ‘We the
Citizens’ challenges the validity of both Article 35A and Article 370. It
argues that four representatives from Kashmir were part of the Constituent
Assembly involved in the drafting of the Constitution and the State of J&K
was never accorded any special status in the Constitution. Article 370 was only
a ‘temporary provision’ to help bring normality in J&K and strengthen
democracy in that State, it contends. The Constitution-makers did not intend
Article 370 to be a tool to bring permanent amendments, like Article 35A, in
the Constitution.
The petition said Article 35 A is
against the “very spirit of oneness of India” as it creates a “class within a
class of Indian citizens”. Restricting citizens from other States from getting
employment or buying property within Jammu and Kashmir is a violation of
fundamental rights under Articles 14, 19 and 21 of the Constitution.
A second petition filed by J&K
native Charu Wali Khanna has challenged Article 35A for protecting certain
provisions of the Jammu and Kashmir Constitution, which restrict the basic
right to property if a native woman marries a man not holding a permanent
resident certificate. “Her children are denied a permanent resident
certificate, thereby considering them illegitimate,” the petition said.
Recently, a Supreme Court Bench, led
by Chief Justice Dipak Misra, tagged the Khanna petition with the ‘We the
Citizens’ case, which has been referred to a three-judge Bench. The court has
indicated that the validity of Articles 35A and 370 may ultimately be decided
by a Constitution Bench.TheSC has now deferred the hearing to January 2019 on
the request of deferment by the Governor of J&K.
This Presidential Order inter alia
added Article 35A to the Constitution of India. It is pertinent to note that
any addition or deletion of the provisions in a legal document, let alone the
Constitution, amounts to amendment of that legal document. There is an
established procedure mentioned in the Constitution by which an amendment can
be carried out. This process outlined under Article 368, was circumvented
during the addition of article 35A.
The President of India exercised
legislative power without informing the Parliament in this case. Under the
scheme of our Constitution, the President is the head of the executive and has very
little legislative role, except under Article 123. Therefore, the Presidential
Order of 1954 is also a violation of Article 368 of the Constitution.
The implementation of these
provisions therefore leads to creation of two classes of citizens in the Union
of India. One class has special access in J&K and the other doesn’t. This
is something, which goes against Article 14 of the Constitution, which says
that the state shall not discriminate amongst its citizens on the basis of
their gender, caste, creed, religion or the place of birth. It further says
that the state cannot refuse equality before the law and equal protection of
the laws to any person within the territory of India.
The Supreme Court has said on
numerous occasions that the fundamental rights are the most sacrosanct part of
our Constitution and can’t be violated under any circumstances. Fundamental
rights are also part of the basic structure of the Indian Constitution, which
cannot be amended at all as the apex court has stated. The amendments to the
Constitution cannot even be made through Article 368. Therefore, Article 35A is
a direct violation of Article 14.
The Union government has rightly
parted ways with the state government in front of the Supreme Court. The Centre
expressed its reservations in responding to the NGO’s petition before the apex
court. This means that if Article 35A is struck down, there will be more
legal parity between a citizen of India in J&K and a citizen of India in
any other state. Even from a political point, the existence of such special
legal provisions for Jammu and Kashmir is indirectly an acknowledgment in front
of the international community that the state is a disputed territory and
therefore, it has a special status within the country.
It is high time that the Supreme
Court takes cognisance of this matter. The enactment in the first place
was nothing but political appeasement and opportunism, which was done in an
extra constitutional manner through an illegal process. The NGO’s petition
is a welcome opportunity to declare Article 35A ultra vires.
The Prime Minister Modi has clearly
advocated in his speeches regarding the situation in Jammu and Kashmir that his
government will be following former Prime Minister Atal Bihari Vajpayee’s
slogans of Jhumuriyat, Kashmiriyat and Insaniyat for restoring normalcy
and his government is committed to it.
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