Article 35A also denied basic right to life to more than 4,000 families, who migrated from west Pakistan. They were not entitled to any land, and have been living as refugees for the past 60 years.
By Pradip Bhandari
Democracy is always by the people, for the people, and of the people—it is always representative of the will of the people. In a constitutional parliamentary democracy, the most legitimate means of expression of this will is through elected representatives. The Indian Constitution gives Parliament the legitimate power to express this will, while expressing which, Parliament looks to the Preamble as the guiding light in enacting or amending laws. The principles of justice and equality are building blocks of the Preamble.
Unfortunately, post-independence India committed two Constitutional irregularities, which were against the principles of justice and equality—Article 35A, and Article 370. These provisions for Jammu and Kashmir were utilised as “special” provisions by leaders of the valley, and their allies governing in Delhi. Insertion of constitutional amendment 35A through a presidential order was a move that had no constitutional precedent. The Constitution, under Article 368, gives Parliament power to amend it. Bypassing parliamentary powers, 35A, which disenfranchised people of J&K from basic constitutional rights, was inserted through executive means.
On marrying a non-Kashmiri, Kashmiri Muslim women lost their right to get government jobs, settle in Kashmir, or send their children to government schools. However, a Kashmiri woman marrying a Pakistani retained the right to settle in J&K, and was eligible for a permanent resident certificate (PRC). This acute gender discrimination violated the spirit of the Constitution, and was also a threat to unity and integrity of people.
Article 35A also denied basic right to life to more than 4,000 families, who migrated from west Pakistan. They were not entitled to any land, and have been living as refugees for the past 60 years. Even the 200 Valmiki families who were brought from Punjab to J&K following a cabinet decision in 1957, to be specifically employed as safai karamchari, were not qualified for government promotion. Their children could not take admission in government education institutions, nor were they eligible to apply for government jobs. In short, the son or daughter of a safai karamchari had no other option but to be one too. Political leaders who claimed represent the downtrodden would always look the other way at this denial of right to life to Dalits in the Valley.
More than one lakh Gorkhas, who historically serve in the Indian Army, suffer from social, economic and educational backwardness. Scrapping of 35A gives social and economic justice to the awam of Kashmir.
The common narrative on J&K consciously overlooked the voice of Jammu, and Ladakh. Recently, when Mehbooba Mufti and Omar Abdullaha called an all-party meeting, not even one leader from Ladakh and Jammu was invited. The assembly was designed such that despite having more geographical area and population density, Jammu had a smaller share of seats in the assembly. No chief minister could be elected without the support of the Valley. The provision supported leaders promoting separatist tendency and isolated leaders displaying overtly nationalist tendencies. Making J&K a temporary Union Territory, and Ladakh a Union Territory is the first step to equalise political power in Jammu and Kashmir.
When Article 370 was enacted, the Constitution makers envisaged it to be “temporary provisions with respect to the state of Jammu and Kashmir”. Even in sub-clause 3, it reads, “Notwithstanding anything in the foregoing provisions of this article the President may by public notification declare that this article shall cease to be operative, or shall be operative only with some exemptions and modifications from such state as he may specify provided that the recommendations of the Constituent assembly shall be necessary before the President issues such notification”. This gave the Executive, with the will of the Parliament, the authority to amend and make necessary changes to Article 370. Since the Article was temporary, the word Constituent Assembly was inserted, and not State Legislature. Neither the spirit, nor the operatives of Article 370 indicate the necessity of consultation and concurrence from the J&K Legislative Assembly before making any constitutional changes.
By continuing with a temporary article perpetually, a constitutional irregularity was committed for political convenience. The Preamble speaks of “We, the people of India”. It was unfathomable that a separate Constitution, flag, and proxy dual citizenship in the name of PRC would continue in J&K for seven decades. In the name of of preserving Kashmiriyat, Article 370 pulled away any investment opportunity in the Valley, leading the state to run the highest unemployment rate. Even J&K’s share in new projects announced decreased to a historical low of .02%, as per CMIE data.
With more than 40,000 lives lost in Kashmir, and countless soldiers martyred in the line of duty despite continuous talks with all possible stakeholders, there was no other option but to address the genesis of the turmoil. After all, Kashmiriyat needs to create progressive opportunities for all people of Kashmir—Muslims, Valmiki, Gorkhas, Bakarwals, Pandits—equally. By passing the Jammu and Kashmir Reorganisation Bill, 2019, India has moved away from 70 years of turmoil to a future of hope and prosperity. The Bill upholds constitutional morality, and, for the first time, permits the application of the entire Preamble of India to the J&K region.
(The writer is Founder, CEO, Editor & Chief, Jan Ki Baat)