Article 35-A is unconstitutional & anti-fundamental rights Needs to be renewed

Prof. Bhim Singh
Prof. Bhim Singh

            The role of the Constituent Assembly of India came to an end on January 26, 1950 when Constitution of India was promulgated, except Jammu and Kashmir.

Prof.
Bhim Singh

Under
special circumstances, may be, political compulsions, State of J&K was not brought
under the cover of the Constitution of India as a whole. The Constituent
Assembly of India inserted Article 370 in the neck of Indian Constitution for
the reasons to be debated one day. Anyhow, Article 370 was brought as a
temporary provision inside the Constitution of India. The Constituent Assembly
had clearly debated under the Chairmanship of Dr. Bhimrao Ambedkar that the
provision was only temporary and  meant
to be relaxed at appropriate time. Sad 70 years are over with Article 370.

The
consequences were sad and undesirable even unexpected for several reasons which
shall be discussed by the intellectuals and thinkers someday. But, what
happened in J&K following this temporary provision, say Article 370 which
has not come to the expectation of the people of the country. A Constituent
Assembly was framed in J&K under the leadership of Sheikh Mohd. Abdullah
who was nominated as Prime Minister of J&K by the then Ruler, Maharaja Hari
Singh in 1948.  The Maharaja was forced
to migrate from J&K to Bombay. He remained in Bombay all his life and till
his death in 1961. His ashes were brought as he had desired to Jammu were
immersed in the Tawi River by his only son, Dr. Karan Singh, the then
Sadar-e-Riyasat of J&K. Yuvraj Karan Singh was designated as the Regent in
place of his father in 1948 till he was elected as Sadar–e-Riyasat in 1952.

 After January 26, 1950 when Constitution of
India was promulgated in the entire country except J&K. Unfortunately,
Article 370 was inserted as a temporary provision. Temporary  which ‘continues till date’. It was this
provision which divested the power of the Parliament to legislate in respect of
even three subjects, Defence, Foreign Affairs, Communications and Allied
Matters which were included in the Instrument of Accession signed by the
Maharaja, the ruler of the state in 1947. This was not an error but a blunder.
The error continues to govern the state of Jammu & Kashmir. Article 370
also introduced Clause-3 in Article 370 saying that “President may, by public
notification, declare that this Article shall cease to be operative or shall be
operative only with such exceptions and modifications and from such date as may
specify.” 

“Article
35(A) has to be viewed legally and constitutionally from different prospects.
Article 35(A) was not created/implied by the Constituent Assembly nor it has
been enacted by the Parliament of India. Article 35(A) is only from outside the
scope of Chapter-III of Constitution of India relating with the Fundamental
Rights enshrined for the citizens of India only. This amendment was introduced
in  May 1954 for political reasons,  may be to find a way out to continue Sheikh
Mohd. Abdullah in detention after his dismissal from premiership of J&K on
August 9, 1953. British Lawyer, Dingle Foot while arguing against the alleged
detention of Sheikh Abdullah in 1954 in Jammu Jail had raised the contention
that no Indian citizen could be detained without trial for more than three
months.  The Fundamental Rights were available
to every citizen of India, including Sheikh Mohd. Abdullah and therefore he
challenged Sheikh Abdullah’s detention. The Prime Minister of India Pt.
Jawaharlal Nehru, according to information, addressed a letter to the then
President of India, Dr. Rajendra Prasad with a proposal that Article 35 should
be amended. Article 35(A) was conceived without any legal or constitutional
support. The impression given was that President of India shall amend any
provision in the Constitution may it be Article 35 and exclude the citizens of
India from its cover in any part of the country. It was one of the greatest
tragedies of the time that the citizens of India in J&K were deprived of
their Fundamental Rights enshrined in the Constitution of India from Article 12
to 35. The President had limited power under the Constitution to introduce any
amendment etc. The President of India could only impose an Ordinance for six
months. This amendment in Article 35 was not covered under Article 370 either.
This amendment proposed by the President of India in May 1954 was valid only
for six months. It was this amendment which deprived the residents of J&K
(Citizens of India) of the entire batch of Fundamental Rights ranging from
Article 12 to Article 35. This 35-A continues to be unconstitutional since
then. This is sad and unfortunate that this country has so many historians,
intellectuals, revolutionaries and unparallel thinkers yet none has cared or
dared   study the implications/ scope of this
Ordinance issued by the President  of
India in May 1954.

I  call upon the academicians, lawyers,
intellectuals, media and all those who believe in democracy and rule of law to
study in-depth the reasons and the history buried under the grave of Article
35(A). This is Article 35(A) which has no constitutional standing nor it was
even discussed, argued and debated in any House of Legislature of its validity.
The greatest misfortune, I see is that this 35(A) which I call a draconian law
under which I have personally suffered detentions for years in J&K without
trial. My several friends, political colleagues have also suffered jails under
illegal detentions. Why the  present
rulers as well as ex-rulers in the State of J&K have been supporting 35(A)?
This is 35(A) which is born without parents and for the reasons to use
detention laws against the genuine political activists in J&K. It has
provided a naked sword to the Rulers of Jammu & Kashmir to crush the
genuine voice of the people in J&K. This is unfortunate that 64% of the
population in J&K is illiterate today. The power hungry politicians are
using them to ensure that they shall continue to govern the innocent people in
J&K by exploiting such matters which intend to promote the interest of the
ruling parties. The wrath of the local Kashmiri leaders of NC & PDP who are
shouting against Rule of Law is obvious–power money”.

Who was the
author of 35(A)?  What was the
mission  behind Article 35-A whose womb
this 35(A) was conceived in 1954? What effect it has on the innocent
law-abiding citizens in J&K? Does this 35(A) stands as a wailing wall
between the civil liberties and the citizens of India in J&K? What is the
relevance of Fundamental Rights enshrined in the Constitution of India for the
Indian citizens in J&K in the presence of Article 35(A)? Let us start a
debate on this subject whether this is for the protection of Fundamental Rights
of the Indian citizens in J&K or 
35-A is naked sword in the hands of the undesirable ruling parties so that
the innocent and democracy loving people shall not get the benefit of
Fundamental Rights which every Indian except J&K has been enjoying since
1954 when 35-A was inserted in the Indian Constitution.

(Bhim
Singh, Sr. Advocate, Chief Patron, J&K National Panthers Party)

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