In modern times, the space for regressive laws is shrinking. But abrogation of laws like Article 370 and 35A will be opposed by vested interests. It has taken decades to rid the Muslim daughters of India of the evil and ignominy of triple talaaq—a pernicious custom whereby a Muslim male could divorce his wife by a simple rendering of the word talaaq, three times, by any means. Here too, the Muslim clergy, all male dominated, termed such a judgement by the apex court as an assault on their faith, conveniently forgetting that Muslim countries such as Pakistan have already enacted such laws decades ago. It is, thus, time for India to move on and not be held hostage to blackmail and threats from religious power brokers.
The addition or deletion or modification to any part of the Constitution of India amounts to an amendment to the Constitution. The power to so amend rests in Parliament as per procedures laid out in Article 368. It is a fact that Article 35A was never presented before the Parliament which ipso facto means that the then President bypassed the amending procedure as laid out in the Constitution and usurped the functions of Parliament. More worrying is the fact that this amendment has been concealed from the public gaze through subterfuge, by not mentioning the same in the text of editions of the main Constitution.
As an example, when a new Article on the Right to Education was added to the Constitution after Article 21, it was named Article 21A and it came up in between Article 21 and Article 22. New copies of the Constitution subsequently had Article 21, Article 21A and Article 22 in sequence. Why then does Article 35A find no place in the copies of the Constitution printed after its enactment, when it should have been placed between Article 35 and Article 36? It is also not found in the list of Amendments to the Constitution. For some unfathomable reason, Article 35A appears in the Constitution only as an Appendix, as a result of which even legal luminaries are not aware of its existence. Jagdeep Dhankhar, a senior advocate of the Supreme Court and former Union Minister, in his keynote address at a function organised in the Nehru Memorial Museum and Library in September 2017, made the pertinent point that he too was unaware of the existence of Article 35A—an Article which outrages every word of the Preamble of the Constitution of India.
Speaking at the same venue, the former Governor of the state, Jagmohan said, “The common people of Jammu Kashmir, the poor, no one is benefitting from Article 370 or Article 35A—whether they are Hindus or Muslims. It is only vested interests, the elite, who have been benefitting from these provisions. So called ‘experts’, such as A. G. Noorani, are misleading the people by advocating for Article 370,” and reiterated that it is high time for this law to go.
It is time to give justice to the victims of Article 35A. These are the women of J&K who choose life partners from outside the state and in doing so, lose the right for their progeny to be state citizens. These are the migrants from West Pakistan who came in 1947 and settled in Jammu Division. They are the victims of partition who still languish and long for justice. These are the Balmikis, the safai karamcharis who have no hope for their children other than to remain in this profession, regardless of the academic level of accomplishment achieved by them. These are the Gorkhas of J&K, who have lived here since the 18th century and are denied citizenship rights till date. Such abuse of human rights must end in a free and democratic India.
It is time to repeal Article 370 and Article 35A. There will be violence instigated in the Kashmir Valley when the nation takes recourse to such action, but that cannot, and must not, deter the state from preserving the right to equality, enshrined in the Constitution. If it leads to a long and bloody struggle to preserve the basic character of the Constitution of India, then we, the people of India must go through with such struggle. We must remember that in the USA, the North went to war with the South, over the issue of human rights and Abraham Lincoln won the day. For the good of the people of India and for the residents of J&K, Article 35A must be repealed forthwith as it will pave the way for the development of the state and its total integration with the union.
Ajay Kumar, Author