Clause (3) of Article 32 is not applicable to J&K Its implications

It means that those citizens of India who are residents in J&K but who are not permanent residents', as defined by Section 6 of the J&K state constitution, cannot challenge in any court the denial by the state government of the fundamental rights guaranteed to them by the Indian Constitution because the J&K state constitution has its own version of fundamental rights which is not guaranteed to all residents of J&K. Only the permanent residents' of J&K are So privileged. And those residents of Jammu & Kashmir, who are denied these fundamental rights, cannot approach either the Supreme Court or any local court within J&K for redress because Article 370 has made it impossible for any court to offer redress. The fundamental rights as per the J&K state constitution is discriminatory and there is nothing that any court can do for those who are denied these rights in the state.

 

And it is this defiance of the basic spirit of the Indian Constitution which has been sanctified and legitimized as Article 35A about which little is known even among members of the legal fraternity. Article 35A is not a part of the official text of the Constitution. Article 35A says:

Saving of laws with respect to permanent residents and their rights.- Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State

(a) Defining the classes of persons who are, or shall be permanent residents of the State of Jammu and Kashmir, or

(b) Confering on such permanent residents any special nights and privileges or imposing upon other persons any restrictions as respects

1 Employment under the state government; 

(2) Acquisition of immovable property in the State; 

(3) Settlement in the State; or

(4) Right to scholarships and such other forms of aid, as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part

Readers are urged to note the tone and content of Article 35 A. It says the state government has classified its residents as first class and second class citizens; those Indian citizens living in J&K who are categorized as permanent residents are first class citizens with special privileges. This per enshrined in the state constitution and notwithstanding anything contained in the Indian Constitution no law existing in the state of J&K, and no law which may be made in the future with regard to the matters contained in Article 35A, can be rendered void by Parliament or the Supreme Court on the ground that it violates or abridges the rights guaranteed by the Indian Constitution to all citizens.

What Article 370 is doing is enabling the state constitution to thumb its nose at the Supreme Court and at Parliament. and above all at the Indian Constitution. It is, in effect, saying that the denial of fundamental rights of the Indian Constitution to that section of Indian citizens in J&K who are not "Permanent Residents" is not justiciable and cannot be enforced.

The Constituent Assembly chose to project only one side of Article 370 - that which integrated the state with the Indian Constitution. Article 370 derives its evil Dr. Hyde nature from the state constitution. There is no point in demanding abrogation of Article 370 without demanding that the J&K state constitution be rendered null and void too. Article 370 is only the symptom. The malaise is the J&K state constitution which is completely out of line and not in tune with the basic spirit or structure of the Indian Constitution.

As per Article 35A, persons categorized as nonpermanent residents of J&K cannot buy immovable property in J&K, are not eligible for employment by the state government, cannot contest or vote in local body or Assembly elections, cannot avail of scholarships and other grants offered by the state government to its state subject residents and above all cannot seek redress in any court, local or national. This then is the reason why there is little or no economic or industrial development in the state. No businessman or industrialist from the rest of India will ever invest a rupee in a state which will not allow him to buy and own property in Jammu & Kashmir

The State of Jammu and Kashmir is mostly dependent on Government of India funds not only to meet Plan expenditure but also non-Plan expenditure. Any investment in industry or economic development comes solely from the GOI. Whatever little indigenous trade or industry existed in the state by way of its orchards, carpets and tourism, have been almost destroyed by terrorism and continuing self-pity and apathy compounded by proclivity for parasitism - bleed the rest of India for sustenance and give nothing in return. Considering that the state has neither the financial nor natural resources to exist independently of the rest of India, it is greater integration with India that is called for and not greater autonomy. And this can be achieved, some thinkers believe, only by abrogating Article 370. But that leaves the question of the mechanism by which to integrate the state. constitution with the Indian constitution if you abrogate Article 370 but allow the J&K state constitution to remain I (Continues) (Radha Rajan is a political thinker and author who writes on Indian polity from a Hindu nationalist perspective. She is the Editor of Vigilonline, an

information website. Her books include Jammu & Kashmir Dilemma of Accession, NGOs, Activists and Foreign Funds and Anti-Nation Industry, which she edited jointly with Dr. Krishen Kak and Eclipse of the Hindu

Nation: Gandhi and His Freedom Struggle.)

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Courtesy:- Radha Rajan  and Koshur Samachar September ,2018