What is the Article 35A of the Indian constitution

Whenever Article 370 is talked about, the mention of Article 35A also arises. We cannot find any article named as Article 35A in the Indian constitution but it was part of it. Actually it was introduced through a presidential order of 1954.

Article 35A is about Permanent residents of Jammu & Kashmir and gave special privileges to them.

The special rights there in 35A were rights that were already there for residents of J&K during Raja Hari Singh’s rule.

Original text of the Article 35A

35A. 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) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects:- 

(i) employment under the State Government;

 (ii) acquisition of immovable property in the State; 

(iii) settlement in the State; or 

(iv) 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

https://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/Article%2035A%20of%20the%20Constitution-%20An%20overview.pdf

In short it defined Permanent resident and said that anyone who is not resident of J&K cannot do a job under services of state government, cannot purchase a property in J&K etc.

It was also the provision that if any resident women marries any non resident women then she loses her residential ship but if any Men marries a woman of another state then he will not and the married women also become permanent resident of J&K.

Article 35A was a byproduct of Article 370 and they both were repealed together in 2019.

References

Article 370 of the Indian constitution

The history of the article 370 of the constitution of India dates back to 1948 when India got independence from the britishers. British India got divided into two parts Pakistan and India. At the time of independence more than 50 percent of the country was in direct control of Britishers and the rest were princely states governed by their respective rulers. 

After independence, Nehru became Prime Minister and Vallabbhai patel became first Home minister of India and he was given the responsibility to integrate princely states into India.

There were a total of 565 princely states at the time of independence,  Vallabhbhai Patel integrated almost every state. But few states like Travancore(Kerala), Bhopal, Jodhpur,  Junagadh, Hyderabad, and Jammu and Kashmir were not ready to sign the Instrument of accession. However, Travancore, Bhopal and Jodhpur somehow got convinced and finally joined Dominion of India.

The Annexation Of Junagadh and Hyderabad

The story of accession of Junagadh is interesting, the majority population of Junagadh was Hindu but its ruler Nawab Mahabat Khanji III was a Muslim ruler. The population of Junagadh was in favour of joining India but the ruler wanted to join Pakistan. He also signed an agreement with Pakistan to become a part of it. But ultimately he understood that this is not possible and he decided to flee to Pakistan. Vallabhbhai Patel suggested a plebiscite to be conducted in Junagadh to ask the opinion of its pupils on whether they want to join India or Pakistan. He was sure that the result would come in India’s favour. On February 20th 1948 plebiscite was held and more than 99% of the population voted to join India.

This way Junagadh was made part of India.

The same problem was with Hyderabad’s nawab; he was a Muslim ruler who wanted to join Pakistan or at least remain independent. The problem was Hyderabad’s geographical location, as It was too far from both the parts of Pakistan. Patel knew that this is not sustainable because a separate country in the middle is dangerous for the security of India. India conducted an operation named Operation Polo to annex Hyderabad. The operation was held on 13 Sept to 18 Sept 1948. India emerged victorious and Hyderabad became part of India. 

The Issue with Jammu & Kashmir

Out of three states Junagadh, Hyderabad, and Jammu and Kashmir. Jammu and Kashmir was only bordering state with pakistan and other two were not.

Jammu and kashmir shared its border with west Pakistan of that time and Pakistan was not in favour of letting go of this beautiful land at any cost. 

The Jammu and Kashmir’s situation was opposite to  that of Junagadh. Almost 70% of its population were muslim but its ruler was a Hindu- Raja hari Singh. He was a dogra ruler and did not want to be included in India or Pakistan either. He wanted to rule independently.

There is a tribe named Pashtun near to the border of Jammu and kashmir. Pakistan equipped them with required resources and told them to move towards Kashmir inside the territory of Jammu and Kashmir. At first, Raja Hari Singh did not take it seriously but later on he understood that the condition was serious and he seeked help from India. India said that the Indian army could not interfere until Jammu and Kashmir became Indian territory. Raja Hari Singh and the Indian government negotiated the terms and Hari Singh signed the Instrument of Accession on October 26, 1947. The instrument of accession that was signed by Kashmir and by other provinces were exactly the same and there was no difference in wordings. 

On the very next day the Indian army started its operation in Kashmir and stopped the invaders.

Pakistan couldn’t accept this and the first indo-pak war had started and lasted till Jan 5th 1949. The UN had to intervene and ⅔ of Jammu and Kashmir was kept with India and ⅓ with Pakistan.

 Nehru had already announced that after the situation in Jammu and Kashmir is settled, we will conduct a plebiscite to know the people’s preference on which country they want to join.

After the war had ended Sheikh Abdullah became a popular and forefront leader in kashmir.

It is said that Sheikh Abdullah was a good friend of Nehru so Nehru supported him.

During this period the constitution of India was in its making and to decide the issue of Jammu and Kashmir, 4 members of Jammu and Kashmir state including Sheikh Abdullah were made member of constituent assembly as representatives of Jammu and Kashmir state.

The Constituent Assembly of India drafted article 306(A) that later became Article 370. Article 370 gave Jammu and Kashmir to have its own constitution, flag, and autonomy on internal administration.

Original Text of Article 370

370. Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything contained in this Constitution—

(a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir

(b) the power of Parliament to make laws for the said state shall be limited to—

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the state, are declared by the President to correspond to matters specified in the Instrument of accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation [1950 wording]: For the purpose of this article, the Government of the State means the person for the time being recognised 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 fifth day of March 1948;

Explanation [1952 wording]: For the purpose of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat(now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.

(c) the provisions of article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second provision to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) 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:

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.

What article 370 says?

Article 370(1) says Article 238 will not be applied to Jammu and Kashmir( now 238 is removed),only 3 matters will be under control of Indian Parliament that are Defence, External relation, and Communications, only 2 article ie. Article 1 and Article 370 of indian constitution will apply to Jammu and Kashmir, if parliament wants to apply any other article other than these two then it can only be done by consultation or concurrent 

Article 370(2) Until constituent assembly of Jammu and Kashmir is made if Jammu and Kashmir’s government provide its concurrence to Indian government then such matter will be place before constituent assembly of Jammu and Kashmir for final verdict

Article 370(3) If article 370 has to be removed then it is only one way to do it when presidential order will be issued on recommendation of the constituent assembly of Jammu and Kashmir.

Article 19 of the Indian Constitution

Article 19 of the indian constitution guarantees to citizen the following 6 rights

  1. Right to freedom of speech and expression
  2. Right to assemble peacefully and without arms
  3. Right to form associations or unions or cooperative societies.
  4. Right to move freely throughout the territory of india.
  5. Right to reside and settle in any part of the territory of india.
  6. Right to practise any profession or to carry on any occupation, trade or business.

Article 19 has a much wider ambit and SC at various instances reiterated it.

Rights guaranteed under Article 19 are not absolute but are guarded by Reasonable restriction which are mentioned in 19(2) 

Under article 19(2)

  1. Sovereignty and integrity of india
  2. Security of the state
  3. Friendly relation with foreign states
  4. Public order
  5. Decency and morality
  6. Contempt of court
  7. Defamation
  8. Incitement to an offence

Article 19 comes in part 3 of the indian constitution and is a fundamental right

And like some others fundamental rights Article 19 is exclusively available for the citizens of India only.

There is no separate law which provides freedom of speech for media and press so freedom of press also comes under the ambit of article 19, Supreme Court Reiterated it in its numerous judgements.

Freedom of speech also includes right to remain silent or right not to speak,

In  Bijoe Emmanuel v. State of Kerala (1986) SC upheld the right to remain silent of 3 children who used to remain silent and stand peacefully during the national anthem being sung in their school assembly SC held that it is their right under article 19.

Right to speech is necessary for a true democracy.

Pune Porsche Case

Facts about Pune Porsche case

  • On May 20th a 17 year old kid driving a Porsche Taycan recklessly at the speed  150 crushed 2 IT engineers on a bike.
  • The incident happened at around 2:30 am in the night when the kid was returning from a club and was allegedly drunk (however the police said the alcohol test came negative).
  • The victims include 2 Engineers from MP Ashwini Koshta(F) and Aneesh Awadhiya(M) both died in the incident.
  • The offender was released to the session court the judge ordered him to write an 300 words essay on accidents and 15 days service with traffic police and granted him bail.
  • The JJ board reversed its order 3 days after the bail upon various protest by the people and sent the minor in rehabilitation home till june 5
  • The father of the Teenager who is a real estate agent and was on the run is taken into custody by the police.
  • The pub owner is also under arrest.

Opinion about Pune Porsche case

  • Previously the child was set free by the JJ court just on the condition of writing essay because the child is of 17 years of age however after human cry on social media the order was reversed
  • In the Indian justice system it is said that bail is the rule and jail is the exception, JJ boards do not follow laws rigorously, the laws that are followed for adults do dot apply to kids. Their aim is to reform the kid.
  • According to me the culprits father in this case holds the responsibility of the incident more than the kid, his father gave the keys of the car to the kid who drank alcohol in the pub 
  • The pub manager and the bartender are equally responsible because they served the alcohol to the teen, they must be knowing that the legal drinking age in Maharashtra is 25.
  • The kid should also be given punishment for his act, he must feel that what he has done is very serious and wrong 
uniform civil code

Uniform civil code simplified

Uniform Civil Code has been widely discussed throughout the country in the recent past but many people are not aware about  the same.

 In this article I will discuss what UCC is, why it is being brought now? Is it necessary for a diverse country like India to have a common civil code? In this article I will try to make UCC clear in a way that if a normal person who is not so much aware of laws he can also understand what is Uniform Civil code.

Laws are mainly of two types, Criminal and Civil. Criminal law includes all henious crimes like rape, murder, robbery etc. 

All cases that come under criminal law are considered crime against the state. Here state means the particular government of that country which is in power. If crime happens of criminal nature one cannot escape suit, unlike civil law in which it depends on the party that it has to file a case or not. Civil law deals with disputes between individuals and organisations. In civil cases, the state is not the party. Cases in Civil laws include contract dispute,negligence(lack of care)and all cases related to family law. Family laws include Marriage, divorce, alimony, inheritance, maintenance, succession etc.

Currently in India for different religions we have different codes and acts under family law. The purpose of making a Uniform or common civil code is to remove discrimination that a certain group of people are facing because of traditional laws that their religion follows. India is a diverse nation and it has many religions. 

When in India we talk about Uniform Civil Code our main focus is on Family laws only. We have different family laws for different religions in India. The sole purpose of Introducing Uniform Civil Code would be to eliminate discrimination amongst citizens and to make every law uniform for all.

There can be different ways to introduce Uniform Civil Code:

 We can make one single code  that every religion will have to follow right from marriage to maintenance and succession etc this can be termed as introduction of Uniform Civil Code, or either as a choice, we continue the existing laws that every religion is following now and just remove discriminatory provisions that is present in that law.

Some of the discriminatory provisions are Nikah Halala, polygamy for husband, biased distribution of property after divorce in Shariat Law.