This engineer first brought Article 35A under scanner

Dinesh Manhotra

Tribune News Service

Jammu, August 17

A few years ago neither legal luminaries of the country nor Kashmir experts across the globe were aware of the importance of Article 35A in defining J&K’s constitutional relations with the Indian Union.

The self-proclaimed experts on Kashmir in the BJP and in the erstwhile Jana Sangh had always focused on Article 370 to exploit people’s sentiment to reap political benefits but none of them thoroughly had read the Indian Constitution to pinpoint the contentious Article 35A.

The credit for “discovering” and questioning the very existence of Article 35A goes to a Jammu-based engineer-turned-columnist, Daya Sagar, who has a habit of reading constitutional issues related to J&K. “I started studying Article 35A in 2009. After four years, I arrived at the conclusion that the provision was illegal,” Daya Sagar told The Tribune. He recalled that during a national seminar at Ghaziabad in 2013 when he questioned the existence of the Article, some legal luminaries made fun of him.

“Through my belief and logic, I convinced eminent legal experts of the country that the existence of Article 35A is challengeable as it was added to the Constitution through illegal means,” he claimed.

Interestingly, initially leaders of the BJP, whose politics revolves around the abrogation of the special status of J&K since the days of the Jana Sangh, rejected Daya Sagar’s argument as they considered themselves experts on the Kashmir. Now, the same leaders are staking claims that they had pin-pointed the flaws in Article 35A. “Going through the Constitution (Application to Jammu and Kashmir) Order 1954 CO 48, one will find that Article 35A has been mentioned as a ‘new Article’ included in the Constitution of India on May 14, 1954,” he said, adding, “It must surprise any considerate mind that why an Article of the Constitution of India is not mentioned in the main body of the Constitution. Since this Article is not mentioned in the main text of the Constitution many legal experts and practitioners were either not aware of the seriousness and constitutional status of the Article or they had not given a serious thought to its nature and content,” said Daya Sagar.

He said some legal practitioners did accept this during discussions after he initiated a study on the Article’s existence in 2009. Article 35A enables the state Assembly to define "permanent residents" and give them special rights and privileges, as well as to restrict the rights and privileges of all citizens of India who do not fit into this definition of "permanent resident." As a consequence, no one, except those defined as "permanent residents", are entitled to property rights, employment in the state government, admission to government-run technical education institutions, scholarships and other social benefits.

Who has challenged it? 

A Delhi-based NGO, "We The Citizens," has challenged the legality of Article 35A on the grounds that it was not added to the Constitution by an amendment under Article 368. Jammu Kashmir Study Centre, another Delhi-based pro-RSS think tank, has questioned the existence of the Article. Daya Sagar is one of the members of this think tank that has clubbed its writ petition with earlier pleas