Above: Photo Courtesy Bhavana Gaur
The latest edition of India Legal show discussed the two provisions — Article 35A and Article 370 which has been of late challenged in the courts saying that the two provisions should be struck down as they do injustice to the original inhabitants especially women who are deprived of their rights once they get married outside the J&K state.
Rajshri Rai, Editor-in-Chief, APN anchored the show. The panellists included:
- Professor Bhim Singh, President, Panthers Party
- Kamal Hak, Spokesperson, Panun Kashmir
- Aishwarya Bhati, Advocate, Supreme Court
- Bimal Roy Jaad, Petitioner and Advocate, Supreme Court
- Anil Kumar Jha, Petitioner who challenged the Article 370
- Justice VK Gupta, Former Chief Justice, Jharkhand High Court
Rai started the debate by asking the first question to Justice Gupta as to what are his views on Article 35A.
Gupta replied: “Article 35A was inserted into the Indian constitution purely for political considerations. This insertion was wrong and illegal because it was done so by virtue of the powers resting with the President under Article 370 — the president issued the order with the concurrence of the J&K government. In my opinion the court under judicial scrutiny can term this article as illegally inserted into the constitution and if it does so this article could be set aside.”
Jaad who has challenged Article 35A in the apex court told panellists on what basis he petitioned against Article 35A. Jaad explained: “Article 35A was incorporated by bypassing 360A — amendment to constitution. When Article 35A was brought to J&K in 1954, along with that Section 6 of J&K came into force — citizenship of state of J&K. That specifically deals with a notification issued in 1937 by the then Maharaja. He ordered that if a woman of J&K state marries a non-state subject she will lose her rights with respect to property, education and education to children.”
Hak shared the same sentiments and articulated: “The implications of Article 35A are a bit weird. For example, the ex CM of J&K, Omar Abdullah whose mother is not even an Indian citizen and I think she has not visited Kashmir in the past 27 years. His son has all rights over Kashmir—citizenship, resources, job, politics or property but the same Omar Abdullah’s sister who married Sachin Pilot outside J&K, she is denied all these rights.
“This is a very inhuman act. This is grave injustice. It is the right of women of Kashmir whom do they chose to marry but if as an implication of that her fundamental rights are violated then it is not justified. It is legal or not will be decided in court but on humanitarian grounds it is very unjust.”
Bhati also spoke vociferously urging abrogation of Article 35A adjudging it as an infringement of fundamental rights. Bhati pointed out: “Article 35A is the only provision which without being debated in Parliament has been adopted, overruling all sorts of legislative process. Article 35A says that in four matters fundamental rights won’t be applicable if the state makes any law — employment, settlement, buying property in state and the grants received from the state.”
Bhati further added: “It is not about property, those restrictions are there in Himachal Pradesh too but nowhere are fundamental rights being violated. Kashmir was not the only state; we were a collection of princely states which came together. The needs of a newborn India were different but after 70 years its needs are different.”
Here are the bytes of the panelists:
Bhim Singh
Bimal Roy Jaad
Kamal Hak
Justice VK Gupta
Aishwarya Bhati
Anil Kumar Jha
—Compiled by Lilly Paul