Under special circumstances, may be, political compulsions State of J&K was not brought under the cover of the Constitution of India as a whole. The Constituent Assembly of India inserted Article 370 in the neck of Indian Constitution for the reasons to be debated one day. Any how, Article 370 was brought as a temporary provision inside the Constitution of India. The Constituent Assembly had clearly debated under the Chairmanship of Dr. Bhimrao Ambedkar that the provision was only temporary and shall be relaxed at appropriate time.
The consequences were sad and undesirable even unexpected for several reasons which shall be discussed by the intellectuals and thinkers someday. But what happened in J&K following this temporary provision say Article 370 has been out of expectation of the people of the country. A Constituent Assembly was framed in J&K under the leadership of Sheikh Mohd. Abdullah who was nominated as Prime Minister of J&K by Maharaja Hari Singh in 1948 before the Maharaja migrated from J&K to Bombay. He remained in Bombay all his life and died in 1961 in Bombay itself. His ashes were brought as he had desired in his will to Jammu Tawi and immersed in the Jammu Tawi by his only son, Dr. Karan Singh, the then Sadar-e-Riyasat of J&K.
This is necessary to mention the political happenings between 1948 and 1961. Maharaja Hari Singh was literally forced to leave J&K. He settled in Bombay and remained there till his death in 1961. Yuvraj Karan Singh was designated as the Regent in place of his father from 1948 till 1952.
After January 26, 1950 when Constitution of India was promulgated in the entire country excepting J&K. Article 370 incorporated in Constitution of India which commanded that Parliament of India shall have no legislative power vis-à-vis J&K. The President of India was given the mandate to make laws in respect of three subjects namely, Defence, Foreign Affairs and Communications (with Allied Matters) to make laws whereas rest of the subjects were to be dealt with by the State Govt. It is also important to mention that, “For the proposes of this article, the Government of the State meant the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the 5th day of March, 1948.”
This is very important to note that Article 370 also introduced Clause-3 in Article 370 saying that “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 may specify.”
A proviso was inserted which commanded that “recommendation of the Constituent Assembly of the State referred to in Clause (2) shall be necessary before the President issues such a notification.” It is very important for the historians, intellectuals and the parliamentarians to understand that this proviso was valid only during the life of the Constituent Assembly of J&K. Constituent Assembly of J&K terminated/came to an end on January 26, 1957 when J&K Legislative Assembly adopted its own Constitution. This proviso disappeared and the President of India was free to act whenever he desires on the command of Clause (3) of Article 370. This subject I had conveyed to President of India during my meeting and urged on the basis of the constitutional interpretation. The President of India today and even since 1957 was competent to bring any amendment or change in any provision contained in Article 370.
As far as Article 35(A) is concerned it has to be viewed legally and constitutionally from different prospects. Article 35(A) was not created/implied by the Constituent Assembly nor it has been enacted by the Parliament of India. Article 35(A) is only from outside the fort of Chapter-III of Constitution of India relating with the Fundamental Rights enshrined for the citizens of India only. This amendment was brought on May 1954 for political reasons, may be to find a way out to continue Sheikh Mohd. Abdullah in detention after his dismissal from premiership of J&K on August 9, 1953. British Lawyer, Dingle Foot while arguing against the alleged detention of Sheikh Abdullah in 1954 in Jammu Jail had raised the contention that no Indian citizen could have been detained without trial for more than three months. The Govt. of India and the Govt. of J&K wanted Sheikh Abdullah to continue under detention. The Prime Minister of India Pt. Jawaharlal Nehru, according to information, addressed a letter to the then President of India, Dr. Rajendra Prasad with a proposal that Article 35 should be amended.
Article 35(A) was conceived without any legal or constitutional support. The impression given was that President of India shall amend any provision in the Constitution may it be Article 35 and exclude the citizens of India from its cover in any part of the country. It was one of the greatest tragedies of the time that the citizens of India in J&K were deprived of their Fundamental Rights enshrined in the Constitution of India from Article 12 to 35. The President had limited power under the Constitution to introduce any amendment etc. or change any provision of the Constitution for a limited period of six months. This amendment proposed by the President of India in May 1954 was valid till December 1954. This is sad and unfortunate that this country has so many historians, intellectuals, revolutionaries and unparallel thinkers yet none has cared to study the implications/scope of this Ordinance issued by the President of India in May 1954.
I only call upon the academicians, lawyers, intellectuals, media and all those who believe in democracy and rule of law to study in-depth the reasons and the history buried under the grave of Article 35(A). This is Article 35(A) which has no constitutional standing nor it was even discussed, argued and debated in any House of Legislature. The greatest misfortune, I see is that this 35(A) which I call a draconian law under which I have personally suffered detentions for years in J&K without trial. My several friends, political colleagues have also suffered jails under illegal detentions. Why the present rulers as well as ex-rulers in the State of J&K have been supporting 35(A)? This is 35(A) which is born without parents and for the reasons to use detention laws against the genuine political activists in J&K.
I was shocked, the other day, to hear my dear colleagues in the bar arguing in favour of Article 35(A). Who was the author of 35(A)? Whose womb this 35(A) was conceived? What effect it has on the innocent law abiding citizens? Does this 35(A) stands as a wailing wall between the civil liberties and the citizens of India in J&K? What the relevance of Fundamental Rights enshrined in the Constitution of India for the citizens of India in J&K in the presence of Article 35(A)? Let us start a debate on this subject whether this is for the protection of Fundamental Rights of the Indian citizens in J&K?
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