By : KANCHAN BASU.
The issue of ‘Article 35A’ is really important in nature as it touches the feelings of the Crores of People of the Country at large. It is Sub Judice before the Apex Court since more than Two year or so. The lordships of the Supreme Court of India will hear the case on 6th August, 2018 as the case stands listed for the day. Since the case for important hearing is reaching nearer, the Political tempo has been geared up by all the vested interests who never wanted to be closer with the Union of India. They are bent upon to further vitiate the already disturbed Kashmir Valley for their interests. The Separatists, Hurriyat Amalgamation, Indian National Congress, National Conference, Peoples Democratic Party have given against the Government of India. They are trying their best to pressurize the Judiciary. Before the appointment of Daneshwar Sharma as the Government of India Interlocutor to negotiate with the Separatists and the Hurriyat Amalgamation, same thing happened as they announced open conflict with the Central Government which took the precautionary measures to thwart their nefarious designs against the Integrity and Sovereignty of the Nation. Government of India prayed before the Apex Court to defer the hearing in the case for some time thereby taking this plea that it had appointed the Interlocutor to defuse the Kashmir tangle. This was considered by the Apex Court. Indian National Congress is not trailing behind to disturb the already disturbed Kashmir Valley. All this is a pressure lactic adopted by these forces and nothing else. Last year, the former Deputy Chief Minister of Jammu and Kashmir Muzafar Hussain Baig who was former Member of Parliament (M.P.) from Baramulla Lok Sabha Constituency while giving an interview to Sanam Aijaz of Gulistan News Channel also sought for advancing strong arguments before the Lordships of the Supreme Court of India for defending the captioned Article of the Indian Constitution. He opposed the threats being given to the Judiciary and the Central Government as he was of the firm view that Threats, Pressure and Violence will negate the issues involved. The Lordships of the Supreme Court of India will draw a negative impression about the aforesaid Articles of the Indian Constitution, he further substantiated. At the same time, he admitted that the State Government of the time had river consulted him about the matter involved at all. Since the appeasing the Separatists and the Hurriyat Amalgamation by the Central Governments from time to time has not yielded anything positive as such hence forth, no such approach is needed in this important issue. Therefore, no further deferment of the hearing is desired at all. Let the Judiciary of the Nation decides on its own without any further loss of time. This is required utmost for maintaining the Dignity, Creditability and Honour of the Apex Court. There should not be any interference in the working of the Court. If, ever time, interference is done, this will be dangerous for the Country as the various experts in the field have opined that it would be suicidal for the Country as more than 70 years have already passed and the Kashmir tangle could not unfortunate indeed. Presently, the State of Jammu and Kashmir is under Governor’s Rule since June 2018 and this is a golden opportunity to let the issue of Article be clinched by the Apex Court of the Country immediately. We are proud of ‘Judicial System’ in our Country. Our Apex Court i.e. Supreme Court of India regarded as the best Court in the Judicial set ups of the World. It has its well established History. After the Independence we attained in 1947, it delivered many a Judgments which go to its credibility and competence. The Political set up of our Country and the Citizens of this land have true faith in its working. Many a remarkable Judgments have been given by it in the past Seven Decades. Prominent among them, cases are:
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- Regarding Bank Nationalization in 1969.
- Regarding Abolition of privy purses of the Princess and Kings of erstwhile States.
- Regarding Reservation Policy.
- Regarding Punjab and Haryana Division.
- Regarding Sahah Bano Case.
- Regarding Triple Talak.
- Regarding Kaveri River Water Distribution Dispute.
- Regarding Narmda River Dispute etc. etc.
It takes time to decide the issues which come before it for its hearing and disposal. ‘Ayodhya / Babri Masjid Case’ is the oldest one but not decided yet. Presently a very important case pertaining to the ‘Article 35A’ of the Indian Constitution is before it for disposal the hearing the various cases is fixed for April 9, 2018.
The issue of ‘Article 35A’ is of paramount importance as applicability of this article debars the Indian Citizens residing outside the State of Jammu and Kashmir for acquiring the land in the State. This is a sort of curb on their fundamental right to acquire the immoveable property in the length and breadth of the Country. J&K State has novel position which is bound to create a wide gap between the Citizens of J&K State (who are also the Citizens of India i.e. double Citizenship) and others residing across the Nation. A very strange indeed. Applicability of this Article is bound to weak the integrity of the Country in the real sense which be made to halt at this stage only without any further loss of time.
‘Article 35A’ of the Indian Constitution will not stand test at Law and is bound to go sooner or later. Pertinent to mention that without following the proper procedure as described under the ‘Article 368’ of the Indian Constitution, ‘Article 35A’ stands annexed to the Constitution. It is not a part of the main body of the Constitution but instead a part of the Appendix. It grants special privileges to the Jammu and Kashmir Citizens. ‘Article 35A’ even bars the ‘President of India’ from acquiring even an inch of land in the State of Jammu and Kashmir and even denies the children of the daughters of the State married Women to Non State subject of all ‘Citizenship Rights’ in the State. On this score, the B.J.P. played the dubious role and sailed together with the Peoples Democratic Party (P.D.P.) in defending the Article in question as also misleading the Jammuites in particular and the other countrymen in general. Article 35A of the Indian Constitution gives ‘Special Rights and Privileges’ to the residents of Jammu and Kashmir. It was added to the Indian Constitution by a ‘Presidential Order in 1954’ and was extended to J&K through the Constitution (Application to Jammu and Kashmir Order issued by the President Dr. Rajender Prashad on May 14, 1954. On this particular Article of the Indian Constitution, Four Petitions are pending before the Supreme Court of India (Apex Court). The Petitions are:
- One Petition filed by Labha Ram Gandhi, President of WP Refugees Association.
- Second Petition filed by One Non Government Organization (N.G.O.). We the Citizens.
- Third Petition filed by Charu Wali Khanna and
- Fourth Petition filed by Dr. Seema Razdan.
Now the eyes of every Citizen of India are open on this particular issue (pending before the Apex Court) Prior to the appointment of present Government of India , Interlocutor Daneshwar Sharma, a Bench comprising of Three Judges of the Apex Court – Justice Deepak Mishra (former Chief Justice of India), Justice Ajay Manikrao and Justice D.Y. Chanderachud, was hearing the case. The hearing in these ‘Four Petitions’ was deferred by the
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‘Bench’ following the submission made by the Attorney General of India Vennugopal that the Court proceedings would hamper the ‘Dialogue’ initiated by the Government of India Interlocutor Daneshwar Sharma. ‘Article 35A’ of the Indian Constitution has no weight age in the ‘Parliamentary Democracy’ as it has no mandate of the Indian Parliament which is the supreme body of framing the ‘Laws for Governance’ in the country. ‘Article 35A’ of the Indian Constitution was nowhere discussed in the Indian Parliament rather it was the sweet will of the then President of India who incorporated the same in the Constitution. He, on his own only annexed this ‘Article’ in the Indian Constitution. Since it has no mandate of the Indian Parliament it has no base rather it won’t stand in the ‘Eyes of Law’ itself…. The matter is sub judice. Building massive pressur on the Supreme Court of India which is hearing the cases in connection with captioned Articles, will not make the goodwill in the minds of Lordships hearing the related matters but instead will negate them for pronouncing their verdict in favour of the pressure creators. It is not the ticklish issue but is a very simple one as the ‘Article 35A’ won’t stand before the law. Therefore the State Government and the others including Congress, National Conference, People Democratic Party, Separatists are feeling helpless before the Supreme Court of India as they are not having strong arguments in their favour. People of the country have full faith on the Judiciary. But certainly one thing is there that the Supreme Court of India always give its verdict after having heard both the parties in the issues involved. Issues involving the ‘Article 35A’ of the India Constitution were before the Apex Court for adjudication. Apex Court had deferred the hearing over the issue involved and directed for hearing the same later. In between the Government of India appointed Daneshwar Sharma former Central Bureau of India (C.B.I.) Director as its Interlocutor for holding the ‘Dialogue’ with all the stakeholders to arrive at an amicable settlement. Taking the issue as serious one Government of India gave the status of the Cabinet Secretary to the Interlocutor Daneshwar Sharma former C.B.I. Director. Not only this, Government of India gave Daneshwar Sharma a free hand to deal with the issue involved Complying with directions of the Government of India, he started work in on the issue involved. He visited the State of Jammu and Kashmir many a times after November 2017 and is still on the job entrusted to him by the Government of India. Parliament to mention that Separatists, National Conference, People Democratic Party, Kashmiri Organizations and others – all of them are hand in gloves with each other and are trying their best to vitiate the peaceful atmosphere in the Kashmir Valley as also vomiting the poison against the Government of India in order to achieve their narrow interests. They are hectically busy in spreading the poison of hate redness against Indians and building the pressure on the Judiciary in favour of retaining the Article 35A in the Indian Constitution for all times to come. Spreading the anarchy and violence in the Kashmir Valley by the captioned Political and other Organizations will not serve their purpose and ultimately won’t save the ‘Article 35A’. It seems that Daneshwar failed to crack the hard nuts as on date. Therefore the situation demands that the hearing in the case should not defer any more otherwise the Anti-National elements in the Kashmir Valley would be strengthened which will be very dangerous for the country in days to come.
All the Judicial pronouncements given by the Apex Court have been welcomed by the ‘People of the Country’ at large. Throughout, the Kashmir Valley People remained Pro-Pakistan and supporter of so called Azadi (Independence). Now the time has come that they should develop a strong appetite to digest the pro Indian feelings come what may as there is no option to it. They should mend their habits and behaviors in developing the Indian tastes in their own interests otherwise there will not be good results. Pertinent to mention that prior to ‘DIWALI’, when the Supreme Court of India started the hearing on the issue involved, the mindless Hurriyat leaders Syed Ali Shah Geelani , Yasin Malik and Mirwaiz Farooq jointly issued the protest calendar coinciding
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with the hearing dates in defense of ‘Article 35’ of the Indian Constitution. They had shown their strong determination in defending the captioned Article and termed it as ultimate fight for life and death and readiness to give their blood in order to safeguard the ‘Article 35’ of the Indian Constitution. One thing is crystal clear that the Supreme Court of India is no frightened with the pressure tactics of the Separatists and the Hurriyat leaders as has been experienced from its Judicial History after the Country attained the freedom from the chains of slavery from the Britishers, particularly after the Judicial pronouncements made by it recently which include ‘TRIPLE TALAK’ verdict. Also India Judiciary made the Land mark when a C.B.I. Court. ‘Panchkulla’ pronounced the Judgment in Baba Ram Rahim case and given him the rigorous imprisonment of 20 years. The former Law and Justice Minister of Jammu and Kashmir Abdul Haq Khan, while speaking in the Legislative Assembly on January 2018, with regard to the proceedings on the demands and grants of his Ministry had reiterated the Government’s Commitment (B.J.P. can’t skip from the responsibility as it was in coalition with Mehbooba Mufti’s Government) to forcefully defend State position on ‘Article 35A’ of the Indian Constitution in the Supreme Court of India and other such litigations pending in the Court. He further briefed that for the purpose of defending the State Position the State Government has engaged a battery of Five senior most Advocates which include Fali Sam Nariman, Shekhar Naphade, Rakesh Dwivedi, K.V.Vishwanathan and Standing Counsel of the State in Supreme Court of India. New Delhi for vigorously pursuing these litigations to the logical conclusion. Allaying the fears of the members of the Legislative Assembly. Khan briefed that he himself sits in New Delhi along with his team of legal experts during all the hearing dates. Since the matter is sub Judice, he restricted himself for making any remark on this score for defending this ‘Article’, the State Government of Jammu and Kashmir is spending much as has been learnt from reliable resources. This is strange enough that the State Government has made it as the prestige point to win the instant case come what may. The issue involved in the ‘Article 35A’ of the Indian Constitution is a very ticklish one as the same is voilative one because it restricts the Citizens of the Country residing outside the State of Jammu and Kashmir to acquire any immovable property in Jammu and Kashmir. The Apex Court of the Country is once again starting its hearing on the petitions (pending before it) on 6th August, 2018, and onwards. Mindless approach stands adopted by the Kashmir Centric Politicians of the State as also by the Separatists, Hurriyat Leaders. This is very painful indeed. But certainly on thing is certain that the ‘Article 35A’ would stand test at Law because of the reasoning’s captioned in the preceding lines of this Article. It is bound to go once for all.
- The Apex Court may decide the cases on merits.
- The Apex Court may while deferring the hearing in the Case, send the matter to the Indian Parliament to discuss it threadbare and either it be recommended for scrapping the ‘Article 35A’ of endorsed it fully as it is .
- The Apex Court may decide to ask the parties – Petitioners, State Central Political Parties and the Citizens of the Country to settle the issue outside the purview the Apex Court of the above. Second option is the best because of the fact that this was never debated in the Indian Parliament as yet rather it was annexed in the Indian Constitution in 1954 by an order of the then President of India Dr. Rajendra Prasad. We are lucky to have our Independent Judiciary which is above all. Its pride is our honour and we all are bound to maintain its dignity and respectability in any case Under the circumstances, the Kashmir Centric Politicians of the State as also the Separatists and Hurriyat Leaders should have the required patience and courage to deal the issue involved instead of giving the calls for the Kashmir Valley ‘Bandhs’ (Strike) and ‘Violence’.
