New Delhi July 31,2018
Communist Party of India (Marxist) has filed Intervention Application in the pending Writ Petition in the Supreme Court challenging Art. 35 A of the Constitution of India - Special Provision for the State of Jammu and Kashmir- introduced as per Constitution (application to Jammu and Kashmir) Order 1954. The Party is of the unequivocal opinion that Art. 35 A, shall in no circumstance be annulled, modified or repealed. The party opposes the relief sought in the Writ Petition.
As a matter of fact, the declaration sought and the grounds projected and highlighted in the above writ petition have already been adjudicated by separate Constitution Benches of this Hon’ble Court in PurandalLakhanpal Vs. President of India and others [(1962) 1 SCR 688, AIR 1961 SC 1519], SampatPrakash Vs. State of Jammu and Kashmir and Anothers. [(1969) 2 SCR 365, AIR 1970 SC 1118]. The Contentions were rejected in those cases. They are no more res-integra.
The partyfirmly believes that for attainment of the goals of part- IV Directive Principlesof State Policy and the Fundamental Rights under part- III, unity in diversity of India is to be protected. Further, the special status guaranteed to the State of Jammu Kashmir under the Constitution of India which has assumed the permanent feature of the Constitution requires protection as any alteration would be against the policy of federalism envisaged by the framers of Constitution.
Considering the given geographical and topographical position of the Jammu & Kashmir, invasion by tribals at the instigation, aid and support of Pakistan, the majority of Muslim community in Kashmir ,and its identity etc., it can be seen that Jammu & Kashmir has acceded to India in unique circumstances and it possess unique problem which requires a unique solution.
The State of Jammu & Kashmir is the only State in the Union of India which negotiated the terms of its membership with the union. As part of this negotiation process, the relationship of the Jammu & Kashmir State with Union of India and Constitutional machinery was a subject of prolonged and protracted discussion and debate between the leaders of the Jammu & Kashmir and the Union of India under the leadership of Prime Minister Jawaharlal Nehru and Prime Minister of Jammu & Kashmir, Sheikh Muhammad Abdulla.
Jammu & Kashmir was the only state to declare its intention to have its own constitution drafted by its own constituent assembly, as far back as 5th March 1948. At the time of partition and after, it was free to accede to Pakistan or India, or to become an Independent country. But it decided to accede to India on specific terms, despite the fact that religiously the majority population was following Islam. This unique circumstance was a matter of prime consideration for evolving constitutional machinery to prescribe relationship of the state with the Union of India. It is well documented and recorded that “Jammu & Kashmir state now stands acceded to the Indian Union in respect of 3 subjects namely Foreign affairs, Defence and Communication. It will be for the constituent assembly of the state when convened, to determine in respect of which other subjects the state may accede’’. Article 370 embodies this basic principle of solemn compact pact. It is the machinery to integrate the people of Kashmir with India with heart and soul and to stop their alienation.
Article 370 has been repeatedly abused after 1954 Order many times practically negating Article 370 and the autonomy of the state. Among the changes brought about, the most important is restricting the powers of legislature of the State, extension of powers of the union parliament, application to the State of Financial provisions of the Constitution, provisions relating to emergency, all India Services, Superintendence , directions and control of the elections of the State Legislature and several other matters. Article 35A is very much necessary, in this context, not to cause further alienation of Kashmiri People from India.
Article 35-A itself is part of Fundamental Right under Part-III and is not in violation of any other Fundamental Right including Art. 14.
Learned senior Counsel Mr. P.V. Surendranath will appear for the party in the intervention application filed through Resmitha R.Chandran, Advocate-On-record.
Intervention Application is attached herewith.
Filed by - Mohammed Yousuf Tarigami, CPI (M) Member of Legislative Assembly of Jammu and Kashmir. He is also the Member of Central Committee of the Communist party of India (Marxist) [CPI (M)].