Ronik Sharma
Article 35A was fraduentely and mischievously incorporated in the constitution of India and was inserted on 14th May 1954 by a presidential order unconstitutionally, bypassing the Article 368 which empowers only Parliament to amend the Constitution . It was incorporated on 14th of May 1954 by the then president Rajendra Prasad on the advice of Prime Minister Jawaharlal Nehru cabinet. Article
35 A not only blocked the process of development of erstwhile State of J&K and was also stumbling block for proper management and governance of erstwhile State of Jammu and Kashmir. Because of this Article Jammu and Kashmir was deprived of many developmental projects, industries and employment.It was not only arbitrary but also discriminatory because it was clashing with our fundamental rights under Article 14, 19 and 21 of the Indian Constitution. It had not only prohibited the citizens of India for acquiring immovable properties but also prevented them for seeking employment in the erstwhile State of Jammu and Kashmir. It was giving the J&K legislature full discretionary powers to decide who ‘permanent residents’ of the erstwhile State of Jammu and Kashmir are. If a girl of erstwhile State of Jammu and Kashmir married to a person who does not hold a permanent resident certificate of J&K, then she would lose her property right and their children also become ineligible to claim the property of their mother. It had not only given the special rights but also privileges in employment with the State Government, acquisition of property in the state, settling in the state, and the right to scholarships and other forms of aid that the State Government provides.
It was also allowing the State Legislature to impose any restrictions upon persons other than the permanent residents regarding the above. The west Pakistani refugees who had migrated to J&K during Partition were not treated as “State subjects” even after six decades under the Jammu and Kashmir Constitution. The Article 35 A says that no act of the state legislature that comes under it can be challenged for violating the Constitution or any other. Mostly Dalit Hindu community and familes of Gorkha were also victims of the Article 35A . The contents of the article 35 A are enunciated as under:-
“Saving of laws with respect to permanent residents and their rights.” — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law thereafter enacted by the Legislature of the State
* Defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
* Conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects —
* Employment under the State Government
* Acquisition of immovable property in the State; (iii) Settlement in the State; or
* Right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part. In 1957 Dalit Community people (Valmikis) were brought to erstwhile State of Jammu and Kashmir from neighbouring State by the then Administration. The successive Governments in J&K did not provide them Permanent Resident Certificate (PRC) and denied thier wards opportunity in other Government Jobs except they were eligible only for the post of ‘sweeper’. Since 1957 their generations were compelled to become sweepers in the Municipal Council of Jammu. Due to this discriminatory Article of 35 A the highly qualified youth of Dalit Community (Valmikis) in J&K did not get an opportunity to become teachers, lawyers, doctors, engineers etc. Thus Abrogation of Article 35A has paved way for citizens of India to come freely and establish industries, invest money in Union Territory of Jammu and Kashmir and also participate in the developmental process of the Union territory of Jammu and Kashmir. Now, the west Pakistani refugees will also get all benefit after its removal as they were not getting earlier. Women of J&K will not be deprivedof their rights and no gender discrimination. The wards of the Dalit Community (Valmikis) and Gorkhas will also get equal opportunities in case of jobs and other social benefits which they were denied before removal of Article 35A. by its removal people of Union territory of Jammu and Kashmir will be immensely benefited in terms of employment in private industries, agricultural Sector. The Union Territory of J&K will become hub of trade and tourism activities and will also boost the economy of the region.
(The author is an Advocate)
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