September 21, 2017

Where I prove 35A is Unconstitutional

The Top trend on Twitter is frequently regarding Article 35A which is implemented in J & K.

Earlier I had written about the illegality and the perfidy of Article 35A, in this post I will explore how Article 35A violates the very principle of Equality enshrined in the Constitution and mentioned in the Preamble- How Article 35A violates the Fundamental Rights guaranteed under Article 14.

J & K state has implemented a law called PRC- or Permanent Residence Certificate law under which certain categories of Citizens are recognised as permanent citizens and are entitled to certain benefits and rights in state including property, voting in assembly elections, admission in state run schools, colleges, various state government schemes.

The most astounding illegality Article 35A implements,  is the different treatment of female and male citizens. A female  as permanent citizen loses all citizenry rights if she marries a non citizen of J & K and her children have no rights either in J & K.

Meanwhile if a male citizen marries a non resident, he retains all his rights and his wife too gets all rights of a permanent citizen in Jammu Kashmir. Not only this, the children too are permanent citizens of J & K.

This law violates the basic fundamental right of equality enshrined in the constitution. The right to equality is gender neutral. Even aliens residing in India are under the purview of this right, but women Indian citizens, who are citizens of J & K, loose these rights? This law is illegal in this aspect.

Now let me examine this in reference to J & K constitution and Laws. The preamble of J & K constitution states all citizens are equal, there is no gender mentioned. So Article 35A violates the very preamble of J & K even. Then let me examine Maharaja Hari Singh laws-  there is no law which allows different treatment of males and females. The law on State Subject was given by Maharaja Hari Singh on April 20, 1927. Subsequently, another note was issued on this subject by the Maharaja on June 27, 1932. There is no unequal treatment of state subjects.

Both in Indian constitution and J & K constitution, no law exists that discriminates on Gender. Some points from a 2002 court judgement. A three judge Bench had said so clearly on October 7, 2002, while delivering judgment in J&K state versus Dr Susheela Sawhney. It had said that a female continues to a Permanent Resident even after her marriage with a man who was Non Permanent Resident. There is no provision in the Notification 1-L/84 dated 20th April, 1927, or in the constitution of Jammu and Kashmir that on marriage with a non permanent resident, the daughter of a permanent resident shall lose her status as a permanent resident of the state.

The term “Emigrant” would include both male and female. The rights of a female emigrant have been protected to the same extent as that of a male emigrant; their heirs are also protected to the same extent. This provision cannot be taken to mean that inequality between the State Subjects is also immune from attack merely because they happen to be permanent State Subjects or the matter regarding which this is done, is covered by Article 35A. The immunity which has been provided is limited. Therefore the question that arises is:

Can a law Article 370, which itself is temporary can impart power to the president of India- The President is a Executive Head.

Can a Temporary Article 370 supersede power given under Article 368 to legislature to amend the constitution and allow Article 35A to be added in the constitution.

Can any Article of Constitution supersede the basic inviolable Fundamental Right of Equality given to every citizen of India?

Article 35A fails these tests on every count. Therefore Article 35A needs to go.

 

Picture Credit: Twitter


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About Nidhi Bahuguna 20 Articles
Housewife, nationalist , loves reading and counter media lies with proof.
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