India Kashmir News

Article 35A, killer of Fundamental Rights of citizens in J&K

By Prof. Bhim Singh

The truth hidden behind this invasion on the Fundamental Rights of the Indian citizens residing in the State of J&K (Permanent Residents) has not been brought to the focus of the parliamentarians or the jurists.

I being one of the victims of this arbitrary Law (35A) am trying to re-open the hidden pages of the history that how and why the people of J&K were brought under such a suppressive and oppressive Laws which grew under the shadow of Article 35(A) depriving the people of J&K of their Fundamental Rights which they were entitled to citizens of India. The citizens of India who were redefined as Permanent Residents of the State of J&K have remained denied of their basic human rights defined in the Constitution India in its Chapter-III as Fundamental Rights. The citizens of India residing in J&K have remained deprived of their basic human rights/fundamental rights since 1954.

The Legacy of 1953

Sheikh Mohd. Abdullah was crowned as Chief Minister of J&K in 1977 under Indira-Sheikh Accord which was opposed by this author (Bhim Singh), who was Secretary-General of the Indian Youth Congress. The Congress surrendered with its 45 MLAs (out of 65) to the dictates of Sheikh Mohd. Abdullah. Sheikh Mohd. Abdullah, the main victim of Article 35(A) in 1953 himself realised that authoritarian rule was only possible in J&K and he agreed to retain Article 35(A) which in fact was introduced on May 14, 1954 by the then President of India, Dr. Rajendra Prasad on the recommendation of Pt. Jawaharlal Nehru.

Sheikh Mohd. Abdullah’s National Conference won election to the State Assembly in 1977. This was the first time that this author also won the State Assembly election with thumping majority as Congress candidate. The Congress won only seven seats in the Assembly. It was National Conference rule which smashed all the decencies of the ruling party. Swallowed huge properties which are still under the control of Abdullas in the state. Sheikh Mohd. Abdullah used the same Detention Rule which were applied against him and his comrades for years by the Central Govt. This author was jailed under the Detention Laws for years by the Govt. of Sheikh Abdullah though he was an Assembly Member in the Congress party. All the tragedies/suppressions/oppressions committed by the earlier governments against Sheikh Mohd. Abdullah’s party and supporters were repeated by Sheikh Mohd. Abdullah and after his death by his son, Dr. Farooq Abdullah and others.

This author resigned from the Congress and also from the State Assembly and floated J&K National Panthers Party to launch a democratic movement to ensure that justice was delivered to all the residents of J&K who were being ruled ruthlessly and mercilessly with the dictatorial Laws.
The Constitution of India could not enter the State of J&K because of the presence of a temporary Article, 370 which still is grabbing the necks of the residents of J&K who are otherwise citizens of India. This is a tragedy that Fundamental Rights incorporated in Chapter-III of the Constitution of India from Article 11 to 35 have not been made applicable to the citizens of India residing in the State of J&K which had acceded to the Union of India on October 26, 1947. Lord Mountbatten, the then Governor-General of India, signed the Instrument of Accession, the next day, October 27, 1947. This is irony of the situation that Article 370 was incorporated in the Constitution of India on January 26, 1950 keeping the State of J&K away from the Union of India. The Instrument of Accession signed by Maharaja Hari Singh on October 26, 1947 was not utilized constitutionally and the State of J&K was not integrated into the Union of India. Temporary Article 370 deserves a critical and serious reading. Maharaja of J&K was allowed to continue as a Ruler of the State although the Maharaja had signed the Instrument of Accession like other 575 Rulers. Article 370 made it clear in its declaration that the Parliament of India shall have no constituent power to legislate in respect of any subject concerning the State of J&K. This power was vested in the President of India alone. The Constituent Assembly of India had clearly mentioned that the Maharaja shall continue as a Ruler of J&K. Sheikh Mohd. Abdullah who enjoyed friendship with Pt. Jawaharlal Nehru constituted a parallel Constituent Assembly in the State of J&K picking up his political agents as its Members. This Constituent Assembly of J&K under the leadership of Sheikh Mohd. Abdullah passed a draconian Resolution on August 20, 1952 dismissing the Maharaja (Maharaja Hari Singh) and declaring J&K as a State without a Ruler. Sheikh Abdullah was arrested under the command of Pt. Jawaharlal Nehru, the then Prime Minister of India, on the night between August 8/9, 1953. Bakshi Gulam Mohd. deputy of Sheikh Mohd. Abdullah was installed as the Prime Minister of J&K by Yuvraj Karan Singh who had been recognized as Sadar-e-Riyasat of J&K by the Central Govt. Sheikh Abdullah was arrested, charged with heinous crimes, was shifted to Madras State and put on trial for anti-national/secessionist activities. Released in 1964 under the intervention of Mrs. Indira Gandhi. He was installed in power as Chief Minister in 1977 under Indira-Sheikh Accord, 1975.

J&K was charged with J&K Constitution which was introduced on January 26, 1957 when Bakshi Gulam Mohd. was the Prime Minister of J&K. This Constitution of India was against all the democratic norms and against the mandate of the Indian Constitution. The new party those days which emerged was known as Jan Sangh which had been opposing separate Flag and the Constitution for J&K underwent several changes and transformations from Jan Sangh to Janata Party and from Janata Party to Bharatiya Janata Party. Unfortunately, the fresh Legislators in the State Assemblies or in the Parliament of India were never introduced with the developments in the political history of J&K. Article 370 was a temporary as was introduced by the Chairman of the Constituent Assembly, Dr.Bhimrao Ambedkar. He was opposed to the introduction of Article 370 but Nehruvian faction had a strong hand. Article 370 though temporary inserted clause (3) in which it was clearly mentioned that,

“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 such exceptions and modifications and from such date as he may specify.” It was a proviso added to this clause (3) which could not have continued after the demise of Constituent Assembly of J&K which expired on January 26, 1957. The proviso had provided that, “the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.” After January 26, 1957 the Constituent Assembly of J&K breathed its last and therefore Article 370 (3) shall read after 1957 as under:-

“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 such exceptions and modifications and from such date as he may specify.”
The Parliament of India is competent to legislate at least in respect of three subjects namely, Defence, Foreign Affairs, Communication and Allied Matters. The President is competent to amend any provision within the scope of Article 370 which was (is) a temporary phase only.

As far as Article 35(A) is concerned this has not been associated on the pages of Indian Constitution even for the simple reason that this Article (35A) was totally stranger in the annals of the Constitution of India. The President of India was assigned power to deal within the meaning and scope of Article 370 alone. Article 35 was part and parcel of the domain of the Fundamental Rights in the Indian Constitution. The President of India had no power whatsoever to interfere with the domain of Fundamental Rights. Under Article 368 of Constitution of India, Parliament of India is alone competent to interfere with the domain of any Chapter of the Indian Constitution. Article 32 was in the domain of the Fundamental Rights as Rights to Property which was amended during the time of Morarji Desai as Prime Minister of India. A proper and specific procedure was adopted through the floors of the Parliament of India. Article 35 was nipped in the bud by the President of India on May 14, 1953 which was not in accordance with the procedure nor it had vested any power in the President of India. This was most tragic that 35(A) introduced by the President of India in 1954 had literally grabbed the Fundamental Rights of the Indian citizens residing in the entire State of J&K. This legislative authority was vested with the Parliament of India alone and Article 35 could not have been demonized. It was this illegal, unconstitutional and undesirable Law imposed by the President of India which had brought suffocation and untold miseries to the great nationalist, secular and democracy loving people of J&K. This author himself was imprisoned about 54 times by the rulers and spent nearly 8½ years in illegal detentions in Srinagar, Jammu, Kathua, Reasi and other prisons. He was not alone about two dozen fellow students were killed by the state bullets right since 1959 till 2015.

The Supreme Court of India has been the only saviour and protector of the civil liberties and unconfirmed Fundamental Rights of this author and his companions who have been fighting for the implementation of rule of law in the State of J&K. The famous case, ‘Bhim Singh vs. J&K & Ors’ that Supreme Court decided in 1984 when Prof.Bhim Singh was a sitting MLA of Panthers Party can be read on the pages of Law Books where the Supreme Court of India directed the Govt. of J&K to pay a compensation of Rs.50,000/- (Fifty Thousands Only) to this author. Last year the Supreme Court of India directed the State of J&K to pay a compensation of Rs.200,000 (Two Lacs Only) to Panthers Party’s General Secretary, Ms. Anita Thakur and Rs.100,000 (One Lac) each to Advocate, Mr. H.C. Jalmeria and Journalist Mr. P.K. Ganjoo. They were leading a Panthers Party procession from Reasi (Jammu) to Parliament for implementation of the Fundamental Rights of Jammu Migrants.
This has been a tragedy that 35(A) which was inserted by the Order of the President in 1954 has conferred most draconian and dictatorial power in the Govt. of J&K which can destroy any of the Fundamental Rights of the Permanent Residents of J&K, within the meaning and scope of Article 35(A). Article 35(A) today is being heard by the Supreme Court of India. This author as a Senior Advocate in the Supreme Court of India. A Barrister and holding a Masters Degree in Law from London University with distinction has decided to fight for the cause of the younger generations of J&K who are being put under the rode of suppression and oppression by the Rulers of J&K irrespective of their political schools of thought. The Panthers Party is committed to fight against the suppression and oppression by the ruling parties of J&K against the innocent and God fearing people of J&K with a hope that truth shall win someday, human and fundamental rights shall be honoured by the Rulers.

(The author is Sr. Advocate,Chief Patron of National Panthers Party & Sr. Executive Member, Supreme Court Bar Association.Mob:9871565333,
Email:prfbhimsingh@gmail.com)

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