By Ashwini Upadhyay
Article 35A was not added to the Constitution by following due procedures prescribed for amendment of the Constitution under Article 368. The Executive organ has brought it though the right of amendment to the Constitution lies with the legislative organ. It not only violates the constitutional procedures established by law but also against the basic structure of the Constitution of India. Addition or deletion of an Article amounts to amendment to the Constitution, which could be done only by Parliament as per procedure, laid down in Article 368. However, Article 35A was never presented before the Parliament. This means the President had bypassed the Parliament in his order to add Article 35A. This also means that the amending power of Parliament under Article 368 of the Constitution was abridged in its application to Jammu & Kashmir.
In other words, we can say that it is an amendment, without any reference to the Parliament. The classification created by the Article 35A suffers from the violation of Article 14, Equality before the Law and also against basic structure of the Constitution. The non-resident Indian citizens cannot have the rights and privileges, same as permanent residents of Jammu and Kashmir. It facilitates the violation of the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property, if the woman marries a man not holding Permanent Resident Certificate (PRC). Therefore, her children are not given PRC and thereby considering them unfit for inheritance – not given any right to such a woman’s property even if she is a permanent resident. It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste and Scheduled Tribe people who have lived there for generations. The Dalits and Valmikis who were brought to the State of J&K between 1950-60, were given Permanent Resident Certificates on the condition that they and their future generations could stay in the State only if they continued to be scavengers. And even after six decades of service in the State, their children are safai-karmacharis and they have been denied the right to quit scavenging and choose any other profession. The industrial sector and whole private sector suffers due to the property ownership restrictions. Good doctors do not come to the State for the same reason. Children of non-state subjects do not get admission to state colleges. It ruins the status of West Pakistani refugees. Being citizens of India, they are not stateless persons, but being non-permanent residents of Jammu and Kashmir, they cannot enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu and Kashmir.
Article 35A gives a free hand to the State government to discriminate between citizens of India on an unfair basis and give preferential treatment to some by trampling over others, since the non-residents of the State are debarred from buying properties, getting a government job or voting in the local elections. The President of India, by an Executive Order, added the Article 35A in the Constitution though Article 370 does not confer Legislative powers to the President to amend the Constitution of India. Article 35A not only violates constitutional procedures established by law but also the fundamental right guaranteed under Articles 14, 15, 16, 19, 21 of the Constitution.
However, the Executive has not repealed it till date. Addition or deletion of an Article amounts to amendment to the Constitution, which could be done only by the Parliament as per the procedure lay down in Article 368 of the Constitution, but Article 35A was never presented before the Parliament. It means the President of India had bypassed the Parliament. This confirms that the amending power of the Parliament under Article 368 was abridged in its application to the Jammu and Kashmir. The classification created by the Article 35A suffers from violation of Articles 14, 15, 16, 19 and 21 of the Constitution. At present, Indian citizens cannot have the same rights and privileges as enjoyed by the permanent residents of Jammu and Kashmir. That apart, the industrial sector and the whole private sector also suffer due to the property ownership restrictions. Therefore, good doctors do not prefer to come to the State for the same reason.
The Article 35A gives a free hand to the State government to discriminate Indian citizens in arbitrary manner and give preferential treatment to some by trampling over others, since the non-residents of the Jammu & Kashmir are debarred from buying properties, getting a government job or voting in the elections. Article 35A facilitates the violation of the right of a woman to ‘marry a man of her choice’ by not giving her heirs any right to property, if she marries a man not holding PRC (Permanent Resident Certificate). PRC is not given to her children and thereby considering them unfit for inheritance – not given any right to such a woman’s property even if she is a permanent resident of Jammu & Kashmir. Article 35A facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste and Scheduled Tribe people who have lived in J&K for generations. Dalits and Valmikis who were brought to the State between 1950-60 were given Permanent Resident Certificates on the condition that they and their future generations could stay in the State only if they continued to be safai-karmacharis (scavengers). And even after six decades of service in the State, their children are safai-karmacharis and they have been denied the right to quit scavenging and choose any other profession.
The industrial sector and whole private sector suffers due to the property ownership restrictions. Good doctors and experienced engineers and teachers do not come to the State for the same reason. The Children of other States do not even get admission in the Medial, Engineering and Professional Colleges and Universities. Article 35A also ruins the status of West Pakistani refugees. Being the Indian citizen, they are not stateless persons, but being non-permanent residents of J&K, they cannot enjoy the fundamental rights guaranteed under the Articles 14, 15, 16, 19 and 21 and the privileges, as being enjoyed by permanent residents of J and K. Article 35A gives a free hand to the State government to discriminate the Indian citizens in arbitrary manner and give preferential treatment to some by trampling others, since the non-residents of other States are debarred from buying properties, getting a government job or voting in the election. Article 35A of the constitution is arbitrary and contrary to the Articles 14, 15, 16, 19, 21 of the Constitution. Hence, void and inoperative. Fundamental rights guaranteed under Part-III of the Constitution viz. right to equality, right to employment, right to equal opportunity, right to trade and business, right to form association, right to information, right to marry, righ to privacy, right to shelter, right to health and right to education etc., is equally available to all Indian citizens throughout the territory of India including J & K.
Ashwini Upadhyay, is a spokesperson of the Bharatiya janata party and a Supreme Court Lawyer