DAILY NEWSPAPER ANALYSIS

(DNA)



02 July 2019


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J&K tense ahead of SC hearing on Article 35A

By Aspire IAS

  1. J&K tense ahead of SC hearing on Article 35A

Theme: Article 35A

In news: Last week, the State government, currently under Governor’s Rule, moved a plea in the Supreme Court to defer the hearing on a clutch of petitions challenging the validity of Article 35A of the Constitution, citing the upcoming panchayat and urban local body elections.

Article 35A:

  • Article 35A lets the J&K Legislature decide the “permanent residents” of the State, prohibits a non-J&K resident from buying property in the State and ensures job reservation for its residents.
  • Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

How did it come about?

  • Article 35A was incorporated into the Constitution in 1954 by the order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.
  • The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.
  • The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir. Therefore, Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.
  • The parliamentary route of law making was bypassed when the President incorporated Article 35A into the Constitution.
  • Article 368 (i) of the Constitution empowers only the Parliament to amend the Constitution.
  • A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the President’s powers under Article 370 to ‘modify’ the Constitution. Though the court observes that the President may modify an existing provision in the Constitution under Article 370, the judgment is silent as to whether the President can, without the Parliament’s knowledge, introduce a new Article. This question remains open.

ISSUE:

  • A writ petition filed challenges the validity of both Article 35A and Article 370. It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of Jammu and Kashmir was never accorded any special status in the Constitution.
  • Article 370 was only a ‘temporary provision’ to help bring normality in Jammu and Kashmir and strengthen democracy in that State, it contends. The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.
  • The petition said Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.
  • Another petition has challenged Article 35A for protecting certain provisions of the Jammu and Kashmir Constitution, which restrict the basic right to property if a native woman marries a man not holding a permanent resident certificate. “Her children are denied a permanent resident certificate, thereby considering them illegitimate,” the petition said.
  • The National Conference argues that if the law goes, with it all other presidential orders passed since the 1950s will also become redundant and reopen the debate around the issue of accession.
  1. Amendments will dilute RTI

Theme: Right to Information Act

RTI:

  • Right to Information is an act of the Parliament of India to provide for setting out the practical regime of the right to information for citizens and replaces the erstwhile Freedom of information Act, 2002. Under the provisions of the Act, any citizen of India may request information from a “Public authority” (a body of Government or “instrumentality of state”) which is required to reply expeditiously or within thirty days.
  • The Act also requires every public authority to computerize their records for wide dissemination and to proactively certain categories of information so that the citizens need minimum recourse to request for information formally.
  • RTI was passed by parliament on 15 June 2005 and came fully into force on 12 october 2005.

Objective of the Right to Information Act:

  • T empower the citizens, Promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense.
  • It goes without saying that an informed citizen is better equipped to keep necessary vigil on the instruments of governance and make the government more accountable to the governed.
  • The Act is a big step towards making the citizens informed about the activities of the Government.

 

In news:

  • A Committee headed by retired Supreme court Judge  Justice BN SriKrishna submitted its report on “Data Protection Frame work” to Union Minister of Electronics and Information Technology. The committee was constituted by the union government in July last year to deliberate in July Last year to deliberate on a data protection framework.

Issue:

  • The Chief Information Commissioner is warned by the Central Information Commissioner, that “The Right to Information Act will be rendered absolutely useless in securing access to public records pertaining to public servants.
  • Terming the amendments as unconstitutional, he noted that the Justice Srikrishna panel had not consulted the Central Information Commission before making its recommendatios.
  • The Justice Srikrishna panel’s draft Personal Data Protection Bill, 2018 proposes to amend section 8 of the RTI Act, which allows certain types of information to be exempted from disclosure. This allows certain types of information to be exempted from disclosure. This includes “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, which would cause unwarranted invasion of the privacy of the individual unless the central public information Officer or the state Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information”.
  • The proposed amendment would instead exempt “information which relates to personal data which is likely to cause harm to a data principal, where such harm outweighs the public interest in accessing such information having due regard to the common good of promoting transparency and accountability in the functioning of the public authority.
  • If amended, the section would “expand scope of denial of information with several ambiguous and very wide expressions”, as the Bill contains no definitions for “common good”, “Promotion”, “transparency”, “harm” or even “Privacy”.
  • Since there is ambiguity with respect to the definitions, “harm” could be interpreted as “mental injury”, “loss of reputation, or humiliation” and “any subjection to blackmail or extortion”. Any of these could be used to reject information, as even embarrassment could be considered as “mental injury”, thereby diluting the very objective of the Act.