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Why Article 35A Matters

The Kashmir Monitor

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By Burhan Majid

Ever since the BhartiyaJanta Party came to power in 2014 at the Centre, there have been calls by party ideologues to scrap Article 35A of the constitution of India.

Article 35A confers upon the government of Jammu and Kashmir the power to define permanent residents and give them special rights and privileges with regard to employment, acquiring immovable property, scholarships and other forms of aid in the state.

 

However, the debate has recently gained more traction with Union finance minister ArunJaitley attacking Article 35A in a blog. Terming it a “historical blunder,” he argued Article 35A was included “surreptitiously” in the constitution, and is, therefore, “constitutionally vulnerable”.

This has worried many within the state and out of it.

Abrogating Article 35A, and Article 370, from which the former inexorably flows, has long been an agenda of the BJP. Yet, the debate has lately remained concentrated around Article 35A. This is partly due to an overhyped writ petition filed before the Supreme Court challenging the constitutionality of Article 35A. The Court is yet to decide the matter.

It’s a settled constitutional position that the state of J&K enjoys a special identity within the constitutional framework of India due to a unique blend of historical and political reasons. This is well reflected in Article 370 of the constitution, drawing its roots from the Instrument of Accession the then Maharaja of Jammu and Kashmir signed with Union of India on October 26, 1947.

An overall reading of the Instrument of Accession and Article 370 establishes that the formerly princely state of J&K ceded the power to legislate to Union of India only in respect of three subjects – defence, external affairs and communication – subject to consultation of the state government.

In other matters, however, the concurrence of the state government is required. The same applies if the provisions of the constitution are to be applied to the state.

This is politically significant in that the constitution makers didn’t intend the application of constitution to the state of J&K ipso facto. However, given the historicity of the state, the constitution made its application subject to orders by the president from time to time.

It is to this effect, SardarVallabhai Patel observed in the constituent assembly:

“In view of the special problem with which the Jammu and Kashmir government is faced, we have made special provisions for the continuance of the state with the Union on the existing basis.”

In 1954, in the backdrop of Delhi Agreement of 1952, the President issued The Constitution (Application to Jammu and Kashmir) Order, 1954. The order extended a set of constitutional provisions including Part III on fundamental rights to the state of J&K. However, this gave rise to an imminent clash between fundamental rights of non-state subjects and the extant state subject notifications of 1927 and 1932 issued by the then ruler of the state Maharaja Hari Singh.

The notifications barred non-state subjects from acquiring immovable property and applying for jobs in the state. Issued to secure interests of the state subjects, the notifications were later endorsed under Para 8 of the Instrument of Accession.

In a bid to reconcile the clash, and in keeping with the spirit of Instrument of Accession and the Delhi Agreement, Article 35A was inserted in the constitution through the same Presidential order. Article 35A immunises the state subject notifications from challenge on the ground of being violative of Part III.

Is Article 35A ‘constitutionally vulnerable’?

The debate on Article 35A has had largely been in terms of its legality. Those who argue Article 35A is unconstitutional do so on two major grounds. Pertinently, these also form much of the substance of the writ petition. Therefore, it becomes important to examine these grounds in little detail to ascertain their legitimacy.

It’s argued that Article 35A was introduced by a Presidential order, or as the finance minister writes, “surreptitiously”, than by following the ordinary procedure of amendment under Article 368 of the constitution.

The truth is that Article 370 vests in the President power to extend the provisions of the constitution “subject to such exceptions and modifications as he may by order specify”. The Supreme Court endorsed this in Sampat Prakash v State of Jammu and Kashmir and Anr., 1970 AIR SC 1118 in which the court ruled “modification” as used in Article 370 includes an amendment.

The court even went on to say that “there is no reason to limit the word ‘modification’ as used in Article 370 only to such modifications as do not make any radical transformation.” The Court observed: “Article 370 is a special provision for amending the Constitution in its application to the state of Jammu and Kashmir…..Article 368 does not curtail the power of the President under Article 370.”

Be that as it may, an overall reading of Part III as amended by the 1954 order implies Article 35A is not a new Article as is argued. It’s merely a saving clause and creates an exception to the generality of Part III in order to save the pre-1947 state notifications of 1927 and 1932 from challenge under Article 13 of the Constitution of India.

Second, Article 35A is challenged on the ground of being violative of the equal protection clause under Article 14 of the Constitution. This argument lacks legal foresight in that “Article 14 protects classification for the purposes of legislation”. This was eloquently observed by the Supreme Court in Chiranjit Lal Chowdhury v Union Of India and Others, 1951 AIR SC 41.

The fact of the matter is that the classification here is based upon an intelligible differentia having a rational relation to the object sought to be achieved which is to preserve the autonomy of the state as spelt out in the Instrument of Accession and Article 370 of the Constitution of India. Interestingly, many other north-eastern states also enjoy similar protection.

Having said all this, it doesn’t legally make any sense when Article 35A is termed as “constitutionally vulnerable”. Yet, that the government may unilaterally abrogate Article 35A or may influence the Supreme Court in doing so can’t be ruled out in the current circumstances. In any case, the result would be disastrous.

If Article 35A is scrapped, it will certainly impinge upon the legality of the constitution order of 1954 in toto, and the subsequent amendments to it. That’s because Article 35A forms part of the larger set of terms and conditions for which the state government gave concurrence vis-à-vis the 1954 order. The concurrence was given on each and every clause taken together. The Government of India can’t cherry pick a clause from the 1954 order and scrap it. In case it does, rest of the 1954 order and the subsequent amendments to it will naturally loose legality and cease to bind the state.

The upshot is that if Article 35A is indeed abrogated, the Government of India has a legal obligation to devise a mechanism to restore what forms the premise of the provision. Else, it will turn the clock back to the constitutional position of the state that existed before 1953.

This will imply, among other things, the state residents will cease to be the citizens of India and the Supreme Court will no longer have jurisdiction over the state.

Cut to Article 35A, its abrogation will, in no way, pave way for the non-state subjects to purchase immovable property, apply for jobs, or settle in the state. This argument is fortified by the fact that the state subject notifications will continue to be protected under Para 8 of the Instrument of Accession as it explicitly recognises the “validity of any law at present in force in the state”.

(Burhan Majid is an assistant professor at School of Law, Hamdard Institute of Legal Studies and Research, JamiaHamdard, New Delhi. Views expressed are personal. Courtesy: thewire.in)


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Opinion

Reliving Faith in modern times

Monitor News Bureau

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By Amir Suhail Wani

A voice lost to wilderness or the madman’s rubric, any talk of religion, God, metaphysic, values and reality suffers any of two possible consequences. Giving him the advantage of anonymity, a top notch Jamat i Islami scholar pertinently described modern epistemology with all its offsprings as the means and instruments of ensuing and securing a revolt against the God and religion. Never before was civilization so shallow in matters of faith and never before a unanimous and collective onslaught was launched against the sacred, Transcendent and divine. A mere mentions of words like “Divine”, “sacred” or “Transcendent” makes people, experiencing the opiedation of modernism, to rise their eyebrows. Any talk of worlds beyond the sensual is termed as intellectual backlog. World has seen, now and then, people rising, out of their intellectual sincerity or otherwise rising against religion and God. But historically they could never enjoy the status of metanarrative, but were always, by virtue of historical entelechy confined to margins of civilization. In post renaissance era world has succeeded, by and large, in constructing a civilisation and culture with man rather than God as its ontic reference. This man cantered civilization has paved all the possible ways for criticism and demolition of religious meta narrative.

Let’s come to philosophy first. Modern philosophy, starting with Descartian scepticism and evolving through the stages of Positivism, Naturalism, Materialism Nihilism and Existentialism, modern philosophy seems to have ultimately ended up at postmodernism. The possibilities of future development can’t be ignored nor can it be claimed that postmodernism is an all pervasive philosophical trend claiming universal adherence. But the broader picture of things has unfolded thus. Postmodernism maintains incredulity towards metanarrative and has brought with it a host of questions. Traditionally and even up to recent past man seemed to be unanimous on ontic and epistemic stability of things. But with postmodernism not only have been the institutions of religious and traditional impotence held under scrutiny but the very fundamentals of human existence like language, society and all other institutions of human importance have been deprived of their ontic reference and have been made to float freely in abyss of uncertainty. The case with science has been no better. Being a victim of excessive and inordinate empiricism, the Modern day science has surrendered its inquisitive and rational spirit to sheer scienticism.

 

Ibn Arabi, a classical theorizer of Islamic mysticism noted that “God is a percept, not a concept”. In this single line, the master has resolved an age old question and the problems associated with it. The notion of “conceptual scheme” as it has been adopted unquestionably alike by scientists and philosophers has brought with it an equal number of goods and ills. Man has turned obsessive to reduce everything to his conceptual categories. The human attitude of dividing a problem into subunits, though it has paid heavily in scientific realm, but has simultaneously brought irreconcilable problems in other affairs of human existence. Modern medicine treats biology disentangled from psychology and this piecemeal approach has landed us in an era where we know more and more about less and less. In a sense we know everything about nothing and nothing about everything. Traditionally things were seen associated and entangled in the cosmic Web. Coming back to human methodology of understanding things by dividing them into subcategories and then understanding things in terms of local mental categories has distorted and ruined our understanding of God, sacred and divine. We need to understand that the laws formulated by human mind are refuted within the physical realm itself. Thus the laws obeyed by matter aren’t obeyed by light and the laws applicable to fermions are completely defied by bosons. So within our physical immediacy are instances to cleave apart our ultimate trust in the laws of physics. The unending quest for unified theory in physics might bring further insights in this direction. Thus we need to be careful and watchful to the fact that the laws of matter do not apply to the realm of spirit. Coming back to God who is neither material nor spiritual, neither defined by material boundaries nor circumscribed by contours of space we need to be all the more careful. While we try to understand God in terms of mental categories derived from our physical realm we need to be very cautious that all these categories do not hold true beyond this material universe. Our conceptual schemes, which in the final analysis rest on the categories of mundane material realm are too coarse and inappropriate to conceptualise and theorise the realm of divine, sacred and godhead. At a point where despite all boasting scientific discoveries man is yet incapable of understanding his basic biology and where despite of conquering the vastness of space man is yet to gain a glimpse of his psychological depths any sweeping statements and miscalculated statements oriented towards reduction of divine to categories of psyche seems but a naive affair. The enlightened theologians, mystics and philosophers of the past have explicitly denounced the access of finite human mind to infinite cosmic intelligence. What God has informed us here and there in sacred texts is to contemplate the nature and our own selves. This unbiased contemplation is sure to bring forth some indirect aspects of divine. Though we shall be fully conscious of the fact that within the physical universe and human civilization there are instances which are heartrending, discouraging and at times they run quite contrary to the notion of divine. But the mystics and enlightened men throughout the history have been able to dissect the veil of appearance and have succeeded in looking at the essence of existence. On having this enlightened vision they bowed their heads and understood the essence of these apparent vagaries of nature. Ibrahim, the father of modern monotheism, Buddha a silent contemplator, Nanak, a socially conscious religious purgatory amply demonstrate this state of enlightenment. Modern scientific mind is highly welcome in questioning the authenticity of religion, aspects of divine and the apparent chaos that is witnessed everywhere in physical and social landscape. There can be no proper understanding in absence of questioning. Likewise doubt is an essential ingredient of faith. But while one raises questions in atheist or any such frame one must have patience, tolerance and wide sightedness to understand theistic point of view. To dub religion irrational for its simple disagreement with science seems a rather constricted opinion. Religion has been a great architect in shaping the course of human civilization and to unfasten our knots with this perennial source of wisdom, learning, inspiration and exaltation will amount to gross intellectual injustice. The need of hour is not to posit theists and atheists as antithetical but to encourage each to understand the point of other. Maybe in this collective endeavour humanity discovers a paradigm that has still not been thought of.

(The author is a freelance columnist with bachelors in Electrical Engineering and a student of comparative studies with special interests in Iqbaliyat & mystic thought. He contributes a weekly column for this newspaper that appears every Monday. He can be reached at: [email protected])

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Opinion

Pleasures of poetry

Monitor News Bureau

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By Shabbir Aariz   

Poetry is a refined manifestation of using language artfully, effectively and persuasively. Priest, poet and blacksmith were the three those stood before the King in ancient times. Priest and blacksmith are easily identifiable but how do we describe poet? The Greek and Latin roots of the word “poet” means “creator” describing one who demonstrates great imaginative power, insight or beauty of expression. Therefore, the poet must be more than a writer of pretty words. A poet while writing poetry, the poet means to reach his audience in the deepest part of their being and wants to make them absolutely sure that he knows what he is talking about, because they are able to understand what the poet is saying so clearly. It is unlikely that a poet seeks fame. Ideally he is just seeking one person who understands; who embraces him and acknowledges a secret that they share; a mutual agreement that they are both same. It ought to have a universal appeal. It should not be confined to a particular time or age. It matters little whether a poet had a large audience in his own time. What matters is that there should always be at least a small audience for him in every generation. One has to take the poetry into one’s heart to fan the fire there and then also light one’s own fires. One amuses oneself with the world over which one finds to have been given dominion and trust that poetry will in the same measure help one to understand and explain it. Enshrined in poetry are the pleasures of entertainment as well as the pleasures of value. Entertaining pleasure suggests mirth and relaxation while as pleasures of value indicates information and learning. Amazingly some believe that poetry with a particular social, moral, religious or political message restricts reader’s imagination but T S Eliot holds that poetry always adds more to reader’s knowledge of the subject and sharpens his/her thinking power for that particular area. According to him, the poet utilizes his own language for expressing his people’s feelings and emotions. The twofold duty is thus performed; directly promoting, preserving and improving the language with an indirect duty to his people. There should be no denying of the fact that a poet is a person of extraordinary intellect and observation with a command over human nature that allows him to versify his people’s emotions in poetry. How interesting is the fact that such expression of feelings also enriches the language and keeps it alive for ever. We are well aware that in this part of the world, Urdu language even after stepmother’s treatment, has flourished more because of its excellent treasure of poetry and its worst enemies use it to properly express themselves. One finds it appropriate to mention Khushwant Singh’s observation while he says that if you are in love, you need to understand Urdu poetry and if you want to understand Urdu poetry, you need to fall in love. No doubt the role of poetry is less certain due to distractions. Electronic boom like TV, internet and computer made it less tempting and lesser reading population. Needless to say that earlier reading was a primary activity of the population and poets represented the spiritual guide of the population, who helped reader identify their most internal emotions, intuitions and imaginations. Yet the role remains the same as a century ago. Poet captures the essence of the world and the society in a unique manner and reflects it to be understood by people. He also captures the essence of internal emotions including joy, sadness, fear, hope as well as any other feeling comprehensive real of emotions. Poetry is an art to engage, to influence and to inspire. Poetry, every time has passed the ordeal of understanding the realities of human life to its readers with an infallible test of blameless style. Poetry appears to have remained an effective medium of articulating the concrete realities with an ability to speak forth ideas ever since the creation of the universe and the man along with it. And various poets have attempted to define poetry. Someone has observed, “poetry is when an emotion has found its thought and the thought has found words”. Sigmund Freud says, “poets are masters of us ordinary men, in knowledge of the mind, because they drink at streams which we have not yet made accessible to science”. He further observes, “Everywhere I go I find that a poet has been there before me”. P B Shelly observes, “poetry lifts the veil from the hidden beauty of the world”. While John Keats says “…… a thing which enters into one’s soul…”. Samuel Taylor Coleridge centuries before has held, “…. For poetry is the blossom and fragrancy of all human knowledge, human thoughts, human passions, emotions, language.” All said, the poetry in its ultimate analyses is to call the soldier to war and a lover into the bosom.

(A leading lawyer and eminent poet, author contributes a weekly column. He can be reached at:  [email protected]

 
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Opinion

Fighting the menace of corruption

Monitor News Bureau

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By Fida Firdous

Recently J&K Governor publically said that behind the fake appointments in JK Bank there seems some back of political people and involvement of corrupted big fish will not be spared.  He without wasting further time he sacked Chairman J&K Bank. Half of a month had gone, where is report? Who is investigating the case? What has been done to fake appointment?  If this was not just a news stunt or a political posture, then, why action under rules is not initiated against corrupt people? These are some legitimate questions from the desired youth of J&K to be answered?

Governor in his speech said that Kashmir is the victim of politicians and corruption. The statement was widely appreciated and welcomed by all. Without naming any particular political party he denounces any relaxation on corruption belonging to any political party or person.

 

Pretend to mention here, why the system is corrupted? Who makes us corrupted? And what are the consequences of corruption? I’m not writing an essay but revealing what I have witnessed. Let’s talk about home? J&K is among the most corrupted states in India a study of Centre for Media Studies (CMS) in its annual corruption study – CMS 2017- has placed Jammu and Kashmir among top corrupted states.

Answers of these questions are simple, “helplessness” of giver before the corrupted system. There is evidence that corruption at the top of a bureaucratic system increases corruption at lower levels. Manipulating the social and political environment.  

Paradoxically, increased corruption in JK has increased the level of frustration in the young competent youth. This is not evident in jobs only, but other sections as well.  There is a well phenomenon that giving and getting bribe both is corruption. But this phenomenon is administrative in practical. Until transparent system will not be enforced by the government organs to eliminate corruption. The giver and taker will no longer be active in malpractice. So, primary duty of eliminating corruption depends on government organs.

Unemployment is the outcome of corruption. The consequence is deviation of youth and addiction of drugs and involvement in unlawful activities. Youth which is called backbone of a developing country like India and in the conflicted state like JK has its worst results seen so far.  

Today if you are worth competent, merit holder and lacking approach you are at ground zero. For giving bribe you need a political or bureaucratic approach, Agents of corruption. Those who don’t fall under such category will fall prey and sick. What approach means? It doesn’t mean a transparent approach for promising justice, no, not at all. Here it means something else. My simple words may heart some of the persons who are involved in the recent backdoor appointment through political approach and get jobs in JK Bank being incompetent and undesirable that marred the merit of desirable ones. That is why I failed to qualify interviews many times due to the notorious and corrupted system.

Giving job to undesirable person for being a voter or supporter for political gain and use them for propaganda is a bumpy idea. This can’t be the subtlety of politics. Does it mean after pursuing PhD I should follow illiterate politicians for adjustment? Bear me it happens in my home, where an educated person becomes the political bedfellows for getting a job. They are habitually now? They are in a mess of materialistic world where aspirations of the desired candidates are not delivered properly.  At this point of time they become the victim in hands of influential ones or bribers. In a way society is dying. Young youth getting frustrated. Those who facade corruptions are agents of evil.

Don’t take it simple. It is a curse. A curse like cancer. Frustration is due for a postgraduate unemployment youth looking a 10th class person’s in job without any merit. It notionally has bad impact on our society. Further, the more corruption, the slower the economic growth. One of the worse consequences of the corruption is to produce incompetent society. Developed countries are mainly depends upon the competent people, and developing country like India or Kashmir, incorporated incompetent people either by bribe or influence, this incompetency can never contribute to our society. Hence we are thousand years back then the developing countries.

No doubt, corruption is inevitable fact of human civilization. It is the malaise attached to the largest democracy of the world that is India. From getting a job to IAY facility or to any legal case nothing goes without giving a bribe. But it is actually we people who are promoting it; we gave bribe to skip the queues to get driving license without giving any test. There are thousands of cases (files) pending rounding from table to table in our highest office civil secretariat from years reasons best known to everyone. The disposal of our work culture is corrupted.     

Corruption in J&K has becomes a national security threat. We can’t stop it, but there are ways to reduce it. It starts with the government but it includes everyone from lowliest to the highest. In short corruption has to eliminate somewhere and it stops at the ballot box and it stops in the home. Politicians are well aware about this fact, but they are not ready to take any lesson from the pages of history. PV Narasimha Roa is the worst example that history has ever met.

J&K Anti-corruption Bureau, J&K State Vigilance Commission and other agencies must eliminate corruption at a point that it doesn’t affect the whole society in a bad way. An honest man must believe in honesty, everyone is not corrupt. Coordination of young educated youth towards corruption should be voluntary and open. (The writer cam be reached at: [email protected])                                                                                     

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