Article 35A “Entered Constitution Through The Back Door”: Arun Jaitley

Article 35A 'Entered Constitution Through The Back Door': Arun Jaitley

Cover of Sonia Singh’s book ‘Defining India: Through Their Eyes’

Amid speculation that Article 35 A, which grants special rights to residents of Kashmir, may be scrapped, and strong opposition from political parties of the state to any such move, Arun Jaitley in the book “Defining India: Through Their Eyes” by Sonia Singh makes it clear what the BJP government’s thinking is on the controversial article. The case against it is currently pending in the Supreme Court. Arun Jaitley, former Union Minister, spoke to Sonia Singh before the 2019 elections. His words may well be prophetic if the government goes ahead and scraps it .

‘Article 35A [a constitutional provision of 1954 which gives the Jammu and Kashmir assembly power to decide who are permanent residents of the state along with rights like buying property, government jobs, etc.] is a constitutional puzzle. It was not inserted in the Constitution by an amendment made by two Houses of Parliament with the support of a two-third majority. It was an executive insertion by Presidential Notification. It entered the Constitution through the back door. It contains a fundamental breach of the Right to Equality in as much as it promotes discrimination between two categories of citizens based on an irrational criterion. It is constitutionally vulnerable.’

This from the man who was one of India’s top lawyers and is still the government’s go-to person for all constitutional and legal issues is an important indication of what the Centre’s thinking on this is. Petitions against Article 35A are currently pending in the Supreme Court.

Arun Jaitley says, ‘The combination of a special status coupled with Article 35A acted against the interest of the people of Jammu and Kashmir. It prevented investment into the state. No major industries, no hotel chains, no private educational institutions, etc., came into the state. There was no specialized human resource from outside available for scientific research, management for hospitals and medical institutions and technical colleges. Why would anyone come to the state where he cannot own a house, his children cannot get admitted to government colleges, they cannot get a government job? The constitutional framework of the State hurt the people, but it satisfied the separatist psyche of some.

‘Meanwhile, Pakistan tried conventional wars but lost out. In the last three decades it resorted to terror and insurgency organized and encouraged from across the border to create instability in the state. Democracy, secularism, and public order suffered. The people lived a life of insecurity because of terror. Governance and elections inevitably suffered in an atmosphere of fear. The entire Kashmiri Pandit community and most of the Sikhs were ostracized from the state. This was nothing short of ethnic cleansing. This is the single greatest failure of secularism in Independent India,’ he says forcefully.

Today, he feels, is a decisive moment in addressing the entire Kashmir issue.

‘The nation is now debating as to how to correct the Nehruvian blunder seven decades ago. Most Indians believe that Panditji’s vision and formulation of Kashmir has proved to be disastrous. Seven decades’ experience and the cost incurred stare us in the face. Our approach has to be guided by the principles of sovereignty coupled with keeping the welfare and security and interest of the Kashmiri people in mind. That dictates an aggressive posture against separatists and terrorists. What we are currently seeing is the attempt to establish a rule of law in the Valley. This is a decisive moment.’