Sunil RP Sethi
At the backdrop of the hue and cry raised on Art 35 A and related issues in Kashmir and attempts to flare the fire in Jammu Province majorly on communal lines , series of questions are being put to mislead the public by giving false and motivated turn to history . In order to understand clearly the position we may have to answer number of questions being put in biased manner.
First question being asked is “What is Art 35 A and what is its relation with Art 370”. The relevant provisions of law gives the clear answer as “At the time of independence it was thought that there will be separate constitutions for all states and there will be federal Central Govt with control on few subjects only and as such each state was to constitute Constituent Assemblies to frame their respective constitutions. However, subsequently, it was thought of having constitution of the country and as such all Constituent Assemblies surrendered their right to frame state constitutions in favour of Federal Constitution with aspirations of states been taken care in State Lists mentioned in constitution. However as during relevant period there was no Constituent Assembly in JK , a temporary provision was created in Constitution of India as Art 306A ( later Art 370 ) which provided extension of provisions of Constitution of India to the state by President with Concurrence and Consultation of State Government in two situations namely covered by Instrument of Accession and in other situations. But Art 370, nowhere provided or added a new Art to constitution of India itself under Art 370. Beside Art 370 was temporary provision and was to last till Constituent Assembly took decision of it . Its different thing that Kashmir centric Constituent Assembly never took decision on Art 370. So in the absence of Constituent Assembly Art 370 has died natural death as formalities needed for its Abrogation inself mechanism are not required anymore .
Under Art 370, a number of provisions of Constitution of India have been extended to JK by presidential order but in a constitutional fraud Art 35 A was introduced in Constitution of India in its applicability to JK which provided protection to State Subject laws even if they violate Fundamental Rights and to that extent it took away right of judicial review also . This extra Constitutional Protections to state subject laws has led to a number of anomalies and injustice to people of JK.
Next question to be answered is “How Art 35 A has affected people of JK, growth of state and it’s relation to rest of country.”
Reply : Is State Subject laws which were given illegal protection of keeping them even beyond protective provisions of Constitution by way of Art 35 A, inter alia provided restrictions on acquisition thereof only to hereditary State Subjects taken 1944 as base year and as such excluded West Pakistan Refugees who were invited to state in JK, also subsequently classes like Valmiki Samaj, Gurkhas and rest of citizens of country who couldn’t acquire the status . Some rights in State were restricted to State Subjects only like right to own immovable property , right to education , right to jobs in public sector under state and right to scholarships etc and as such vast majority of population were denied rights which was in violation to Right of equality but because of Art 35A it couldn’t be challenged in courts . State Subjects laws even denied rights to female state subjects post their marriages with non state subjects but thankfully it was restored by high court of JK in case of Susheela Sawhney but rights of children of such daughters of state still not given.
Next question doing the round is “Is it not correct that state subjects laws were made by Maharaja Hari Singh so why should there be objections to it when people of Jammu consider him as example of good ruler ?”
REPLY: It is true that State Subject laws were introduced by Last Maharaja of the State but that was at a time when JK was a princely state and efforts were required to restrict state resources to state citizens but when JK became a part of the country as integral part and a state like any other state the considerations have to change. Also even during Maharaja times there were provisions for acquiring state subject by non state subjects through modes like Izzazatnama and Riyaatnama etc after staying in State for nominated period of times but such provisions have been taken away. West Pakistan Refugees are not getting state subjects (PRC now) even after 70 years. Times have changed so quoting history with wrong facts will only create more problems”
QUESTION: If Art 35 A goes will it not take away my chances of getting education and jobs in the Government.
REPLY: Not at all. With more investments coming after relaxed regime after state subjects laws go there will building of large educational institutions and Career centres providing more Avenue of education and jobs to youth . Besides the Govt will still have right to open only particular type of specialised jobs to competent persons from outside state . With super specialty institutions in medical, Engineering, IT, management, industry etc the state need highly qualified persons to man the posts and as such recruitment have to be opened otherwise all infrastructure will be on papers only. We live in a strong country and we should learn to live together. Living together will give more opportunities to all. Another question that is frequently asked is “if State Subjects laws go it will open flood gates of migration and demography of State as will be changed . Is this the agenda behind all this ?”.
REPLY : “This country belongs to all and state is part of country”. If State Subject laws go they will only leave the state with powers to grant rights to own properties to persons who are non state subjects but it can always create restrictions as has been done by other states . Ownership of land to non residents of the state can be restricted to Industry , mega infrastructure, Technical perks etc. There will be no demographic changes. The State will only progress and lead to prosperity of the people of State.
There is concern in trade and industry and common question being projected is : “How going of Art 35 A will help traders and industries. With big trading houses and industrial houses coming it will soon dominate local traders and Industrialists”.
Reply to this is very logical “This apprehension is without base. When big industries will come to state there has to be many side support industry for providing support products. It will be an industrial boom . Besides it will provide huge job opportunities to youth . Traders will also get big benefits in the same way with number of joint tie ups and working relationships without which outsider investors can’t survive”.
(The author is a senior advocate)
srps7737@gmail.com
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