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| Won’t stands test at Law | | ARTICLE - 35A | | R.B. Suri
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 :-
1 Regarding Bank Nationalization in 1969
2 Regarding Abolition of privy purses of the Princess and Kings of the erstwhile states
3 Regarding Reservation Policy
4 Regarding Punjab / Haryana Division
5. Regarding Shah Bano case
6 . Regarding Triple Talak
7. Regarding Kaveri Water dispute
8 Regarding Narmda Dispute etc. etc.
It takes time to decide the issues which come before it for its hearing and disposal. Ayodhiya / Babari 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.
The issue of Article 35 A 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 J&K citizens . Article 35A even bars the President of the nation 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 BJP is playing the dubious role and sailing together with the PDP in defending the Article in question as also misleading the Jammuites particular and the other countrymen in general. of 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 J&K 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 :-
1.One petition filed by Labha Ram Gandhi, President of WP Refugees Association
2. Second petition filed by One NGO , We the Citizens
3.Third petition filed by Charu Wali Khanna and
4. 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 GOI Interlocutor Daneshwar Sharma , a Bench comprising of three judges of the Apex Court- Justice Deepak Mishra ( CJI), Justice Ajay Manikrao and Justice DY Chanderachud, was hearing the case . The hearing in these 4 petitions was deferred by the Bench following the submission made by the Attorney general of India Vennugopal that the Court proceedings would hamper the Dialogue initiated by the GOI 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, 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 Supreme Court of India these days is hearing no. of petitions filed before it for scraping the Article 370 and Article 35A of the Indian Constitution. The matter is sub judice. Building massive pressure 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 the Lordships hearing the related matters but instead will negate them for pronouncing their verdict in favour of the pressure creators. A few months back , the former Deputy Chief Minister of J&K Muzafar Hussain Baig who is MP from Baramulla Lok Sabha constituency while giving an interview to Sanam Aijaz of Gulistan news channel( stand already telecast) also sought for advancing strong arguments before the Lordships of the Supreme Court of India for defending the captioned Articles 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. At the same time, he admitted that the State Government had not consulted him about the matter involved at all. It is not the ticklish issue but is a very simple one as the Article 35 A won't stand before the law . Therefore the State Govt. and the others including Congress , National Conference , Separatists will be feeling help less 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 particularly over the credibility of the Apex court. But unfortunately the valley people have their reservations about the credibility of the Apex court . Actually they want to pressurize the Apex court by threats and violence .But certainly one thing is there that the Supreme Court of India always give its verdict after having heard both the parties in the issue (s) involved .Issues involving the Article 35A of the Indian Constitution were before the Apex Court for judication. Apex Court deferred the hearing over the issue involved and directed for hearing the same after Diwali. In between the Government of India appointed Daneshwar Sharma former CBI Director as its Interlocutor for holding the Dialogue with all the stakeholders to arrive at an amicable settlement. Taking the the issue as serious one GOI gave the status of the Cabinet Secretary to the Interlocutor Daneshwar Sharma former CBI Director.Not only this, GOI gave Daneshwar Sharma a free hand to deal with the issue involved .Complying with directions of the GOI, he started working on the issue involved. He visited the state of Jammu and Kashmir seven times from Nov.2017 to April 2018. He is still on the job entrusted to him by the GOI. Pertinent to mention that
Separatists, National Conference, Kashmiri Muslim 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 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 valley by the captioned political and other organizations will not serve their purpose and ultimately won't save the Article 35A. All the judicial pronouncements given by the Apex Court have been welcomed by the people of the country at large .Right from my childhood , I am experiencing that whatever is an anti Indian factor that is always is welcomed by the valley people happily and whereas whatever is pro Indian factor that is always tar pedo by them with force. Throughout, the valley people remained pro Pakistan and supporter of so called Azadi. Now the time has come that they should develop a strong apatite 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 no 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 Hurriayat leaders SAS Gillani , Yasin Malik and Mirwaiz Farooq jointly issued the protest calendar coinciding with the hearing dates in defense of the 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 Indian judiciary made the land mark when a CBI Court , Panchkulla pronounced the judgment in Baba Ram Rahim case and given him the rigorous imprisonment of 20 years .The Law and Justice Minister of J&K Abdul Haq Khan, while speaking in the Legislative Assembly on Jan,18 with regard to the proceedings on the demands and grants of his ministry has reiterated the Government's commitment 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 5 senior most advocates which include Fali S. 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 that the government is paying Rs . 44.50 Lakhs per hearing before the Apex Court to 5 senior SC lawyers engaged for the purpose. 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 J&K. The Apex court of the country is once again starting its hearing on the petitions (pending before it)on April 9 and onwards. Since I am a Law Graduate as also a former officer of the State administration remained on the senior posts , while exercising my fundamental right of freedom of expression , I have tried my level best to argue the case in these lines in detail and at the end , based upon the captioned lines , having made the in depth analysis of the issue involved , I am to plead that 3 options are there to decide the issue involved , placed below :- 1.The Apex Court may decide the cases on merits 2. The Apex Court may, while differing the hearing in the case,send the matter the Indian Parliament to discuss it threadbare and either it be recommended for scrapping the Article 35A or endorsed it fully as it is and 3. 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. Rajender Prashad. |
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