NEW DELHI, Dec 4:
After seeking a debate on Article 370 that evoked sharp reactions from political parties, BJP today said the provision has nothing to do with secularism and is an instrument of “oppression” against Indian citizens.
To substantiate this, Leader of Opposition in Rajya Sabha Arun Jaitley today cited the example of migrants from Pakistan who settled in J&K at the time of Partition but have not been conferred the status of ‘State subjects’ and thus have no rights in the State they live in.
This, he said, is due to Article 35A which was notified by the President of India as an order and not a legislation pursuant to provisions of Article 370 (1)(d) of the Constitution.
“After a long time, Article 370 is being seriously debated in this country. An ill-informed debate had earlier linked the issue of Article 370 to a secular v/s non-secular debate. Article 370 has nothing to do with secularism. My own study on the subject has revealed a very interesting dimension as to how Article 370 can turn into an instrument of oppression and discrimination against Indian citizens,” he wrote in an article.
“Should a provision like Article 35A which exists only because of Article 370 have place in any civilized society? It is oppressive against citizens of India. It is discriminatory and violative of fundamental rights. Article 35A was inserted in 1954. On a bare reading, it violates the basic structure of the Constitution. I wonder if its constitutional validity will be challenged at some point of time,” Jaitley said.
He said such migrants though enjoying all other powers as Indian citizens like voting in national elections and owning of property in any part of India do not enjoy any of their rights in J&K as they cannot vote or contest Assembly, Municipality or Panchayats elections in the State and cannot get a job or acquire property within J&K.
He said the children of such persons are not entitled to admission to colleges as state subjects and cannot even get scholarship or any other type of aid from the State.
“These citizens of India are not entitled to the protection of Article 14 (equality), Article 15 (prohibition of discrimination on basis of religion, caste, race or place of birth), Article 16 (equality of opportunity in matters of public employment and reservations), the fundamental rights under Article 19 including the right to free speech and the right to life and liberty under Article 21,” Jaitley said.
According to him, such non-state subjects who are citizens of India by virtue of Article 35A are denied protections as they not entitled to the freedom of practice and propagation of religion under Article 25 and neither are they entitled to protection of interests available to minorities under Article 29 and 30.
“The pre-2002 position in relation to daughters who marry outside the State that they would lose their right of inheritance is based on the authority to discriminate against citizens of India, between citizens of India and State subjects which Article 35A confers,” he said.
He said of the millions of people who migrated to India in 1947, those who settled in other parts of India have all the constitutional guarantees available to them, but the “unfortunate ones” who migrated to Jammu & Kashmir have been conferred citizenship of India but are not entitled to any benefits available to ‘state subjects’.
Jaitley said, “Article 35A of the Constitution of India executively inserted pursuant to Article 370 (1) (d) excludes the provision of ‘this part’ of the Constitution.”
He said the effect of this would be that “laws inconsistent with fundamental rights would be valid qua these persons”. (PTI)
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