Article 35-A: BJP Betraying Nation, J&K Daughters

It is a matter of regret that the Modi Government has been adopting delaying tactics to defeat the victims of Article 35-A

Will the BJP repeal unconstitutional, illegal, divisive, communal, anti-Indian, anti-Jammu and Kashmir daughters and anti-Hindu-Sikh refugees (from Pakistan based in Jammu since 1947) Article 35-A? Unfortunately, the answer is not in the affirmative. It’s a big NO. Why so?

Only three examples of what the Narendra Modi Government did or said in the Supreme Court will help conclude that the BJP is interested more in pandering to Jihadis in Kashmir and protecting its alliance with pro-self-rule Jammu and Kashmir Chief Minister Mehbooba Mufti than integrating Jammu and Kashmir into India by removing from the Indian statute book Article 35-A.

Article 35-A was forced down the nation’s throat by Prime Minister Jawaharlal Nehru with the help President Rajendra Prasad on May 14, 1954. They bypassed the Parliament and subverted Article 368 of the Indian Constitution to sow seeds of another communal partition of India and help Kashmiri Muslims create in Jammu and Kashmir Pakistan-like situation so that the Hindus, Buddhists and Sikhs live at the mercy of the majority community and no government at the Centre could intervene to stem the rot and check anti-Hindu, anti-Buddhist and anti-Sikh activities of the radical Kashmiri ruling class.

The Attorney General told the bench that the “Government didn’t want to file its affidavit in response to the petition”.

One, on July 17, 2017, Chief Justice Khehar and Justice YD Chandrachud sent the whole case to a three-judge bench. Why? Attorney General KK Venugopal told the apex court that it was a “very sensitive” matter which would require a “larger debate”. “There were constitutional issues involved in it and it should be heard by a larger bench,” he had told the two-judge bench.

The sad truth is that the Narendra Modi Government shied away from filing a response to spell out its stand on the issue. In fact, the Attorney General told the bench that the “Government didn’t want to file its affidavit in response to the petition”. The Supreme Court went with the Narendra Modi Government leaving the petitioners high and dry.

Two, on August 25, 2017, the Supreme Court agreed to hear after Diwali PILs challenging Article 35-A relating to the “special rights and privileges of permanent residents” of Jammu and Kashmir. The suggestion to this effect again was given by Attorney general KK Venugopal on behalf of the Narendra Modi Government and advocate Shoeb Alam and many other advocates on behalf of the PDP-BJP coalition Government in Jammu and Kashmir, respectively. And a bench comprising Chief Justice of India JS Khehar, Justice Dipak Misra and Justice DY Chandrachud accepted the suggestion. Otherwise, the matter was to come up for hearing on August 29.

Three, on October 31, the apex court in no time deferred the case for three months. Why? The Narendra Modi Government told it that “hearing may affect talks by Jammu and Kashmir interlocutor”. (The Union Home Minister Rajnath Singh announced on October 23 the appointment of former Intelligence Bureau Director Dineshwar Sharma as interlocutor for Jammu and Kashmir.)

Article 35-A bars Indian citizens, other than those who are permanent residents of Jammu and Kashmir, from seeking employment, settling in the state, acquiring immovable properties or undertaking any trade or business.

All these three instances only serve to demonstrate that it was the Narendra Modi Government and the PDP-BJP coalition Government in Jammu and Kashmir which advanced one plea after another to scuttle the hearing on Article 35-A, which is nothing but a fraud perpetrated by the Nehru Government.

It needs to be underlined that Article 35-A ,which is not part of the main body of the Indian Constitution but finds a reference in appendix I of the Indian Constitution, empowers the Jammu and Kashmir Legislature to define permanent residents of the state. It was added through the Constitution (Application to Jammu and Kashmir) Order, 1994. The Jammu and Kashmir Constitution, which was adopted on November 17, 1956, defined a permanent resident as a person who was a state subject on May 14, 1954 and who has “lawfully acquired immovable property in the state”.

Article 35-A bars Indian citizens, other than those who are permanent residents of Jammu and Kashmir, from seeking employment, settling in the state, acquiring immovable properties or undertaking any trade or business if the state government makes any law to that effect and it can’t be challenged before any court.

Article 35-A denies all citizenship rights to the Hindu-Sikh refugees from Pakistan, who have been residing in different parts Jammu province

Article 35-A overrides fundamental rights of the Indians (other than those called permanent residents of Jammu & Kashmir) as embodied in Part III of the Constitution of India and, hence, in conflict with Articles 14, 19 and 21 of the Indian Constitution. These Articles clearly and unambiguously say that the citizens of India cannot be subjected to prohibition or restriction to get employment, trade and commerce acquisitions of property and assets in the State of Jammu and Kashmir. It also bars children of daughters of Jammu and Kashmir married outside the state with non-residents of Jammu and Kashmir from acquiring their mothers’ properties, get admission in the Jammu and Kashmir Government-run and funded educational institutions or acquiring jobs under the Jammu and Kashmir Government. Besides, it denies all citizenship rights to the Hindu-Sikh refugees from Pakistan, who have been residing in different parts Jammu province after their migration in the wake of the communal partition of India in 1947.

There are three petitions filed against Article 35-A: Writ Petition 722/2015 filed by a Delhi-based NGO “We the Citizens”, Writ Petition 871/2015 filed by West Pakistan refugees and Writ Petition 396/2017 filed by Charu Wali Khanna and Dr Seema Razdan (both Jammu & Kashmir daughters).

It is a matter of regret that the Narendra Modi Government has been adopting delaying tactics to defeat the victims of Article 35-A and keep Kashmiri Muslims of all varieties happy at the cost of the nation. It’s no wonder that this official policy has created widespread resentment and dissatisfaction among all in Jammu and Kashmir except Muslims. Indeed, the Narendra Modi Government is betraying the nation, daughters of Jammu and Kashmir and the hapless 2 lakh Hindu-Sikh refugees from Pakistan and this is the negation of the 2014 national mandate.

Note:
1. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.

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Hari Om

Hari Om is former Dean, Faculty of Social Sciences, University of Jammu.

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