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How 2 PILs are helping RSS agenda of Uniform Civil Code, Article 370

New Delhi, July 24, 2017 - The Supreme Court is seized with two PILs on matters very close to the RSS-BJP camp. The PIL on triple talaq awaits judgment of the apex court while in another case the legality of Article 35A, which makes Article 370 special, has been challenged.

Uniform Civil Code and Article 375 have been on the agenda of the BJP since its birth on the lines of the RSS philosophy of Ek Vidhaan, Ek Nishaan (one law, one symbol). The same found its way in the BJP manifesto for 2014 Lok Sabha elections, which saw Narendra Modi emerge as the most towering leader in the country.

Both the issues have been controversial and political parties in power have not tried to meddle in the affairs directly. Even the BJP, which has based its politics on the RSS ideology, has shied from taking any legislative route to implement its agenda repeated in every election manifesto.

Now, two public interest litigations are paving way for implementation of BJP-RSS agenda of having a Uniform Civil Code and bypassing or making Article 370 irrelevant. The two cases, somehow, originated in the last quarter of 2015 and incidentally in both matters the Centre has played key role while responding to the Supreme Court's notices.

UNIFORM CIVIL CODE

India has a uniform criminal code in the form of the Indian Penal Code, which applies in the entire country save Jammu and Kashmir, where the Ranbir Penal Code is in force.

The civil code varies for different set of people or communities depending on their age-old religious and cultural practices. Though several issues of civil litigation are covered under a uniform set of rules and laws, the matters of marriage, divorce and inheritance have been contentious. There is no uniformity.

The Directive Principles of State Policy chapter of the Constitution calls for a Uniform Civil Code. The Supreme Court has on several occasions nudged the Centre for doing away with"total confusion" in the civil laws. As recently as February 2016, the Supreme Court asked the Centre if it was serious about having a uniform civil code.

The RSS believes that there cannot be two different set of rules to decide cases for citizens belonging to different community. So, when a PIL came up before the Supreme Court questioning the practice of instant triple talaq, it found a window to have uniform civil code.

THE TRIPLE TALAQ CASE

The Supreme Court is expected to deliver its judgment in the triple talaq case anytime soon. Chief Justice of India JS Khehar is due to retire by the end of August. He is heading the five-judge Constitutional bench hearing the matter. It is expected that before he retires, the bench would pronounce the judgment.

The matter of triple talaq has its origin in a Supreme Court order of October, 2015 in the Prakash versus Phulavati case. The Supreme Court had ruled, in Part I of the judgment, that the 2005 Amendment to the Hindu Succession Act, 1956 could not be applied retrospectively.

In the second part of the judgment, the Supreme Court referred to"an important issue of gender discrimination" against Muslim women. The apex court laid the road for a separate PIL by issuing notices to the Centre and the National Legal Services Authority.

Later, several petitioners approached the Supreme Court challenging triple talaq, niqah halala and polygamy allowed under the Muslim Personal Law. One of the petitioners, who approached the apex court in October 2016, is Saira Bano, whose husband pronounced instant talaq after 15 years of marriage.

The Centre told the Supreme Court that it is for legal prohibition on the practice of instant talaq. The BJP and RSS hope that the Supreme Court would declare triple talaq illegal, which they consider would take the country one step closer towards uniform civil code.

BYPASSING ARTICLE 370

The BJP and the RSS have been calling for repealing Article 370 of the Constitution. This Article gives special status to Jammu and Kashmir. But, repealing Article 370 requires a Constitutional amendment in agreement with the Legislative Assembly of the state which may never agree to it.
There is another provision that appears in the Appendices of the Constitution as Article 35A. This is considered as the real force behind Article 370.

Article 35A accords special power to the Jammu and Kashmir legislature to enact laws to give special privileges and rights to the residents of the state. It also empowers the Assembly to define Permanent Residents of Jammu and Kashmir. Such laws cannot be challenged on grounds of violating fundamental right to equality of Indian citizens from other states.

PERMANENT RESIDENTS

The present law defines a Permanent Resident as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years and has"lawfully acquired immovable property in the state."

As per the existing laws framed using Article 35A, an outsider cannot buy a property or settle in Jammu and Kashmir. An outsider is not allowed to vote in state Assembly election or contest election to the state legislature. Such a person cannot get a job in the Jammu and Kashmir government or join a professional college or get an aid from the state government.

In short, Article 35A gives Jammu and Kashmir a different kind of exclusivity to maintain its demographic composition. The RSS, on the other hand, believes that the Kashmir can only be resolved by changing the demographic composition of the state particularly the Valley.
Its emphasis on the repeal of Article 370 is based on the belief that a more diverse demographic composition of Kashmir Valley would help seamless integration of the region with rest of the country.

PIL AGAINST ARTICLE 35A

In December 2015, a PIL was filed in the Supreme Court by an RSS-linked NGO 'We the Citizen' seeking repeal of Article 35A on the ground of constitutionality. A similar PIL had been filed in the Delhi High Court earlier by the RSS think tank Jammu and Kashmir Study Centre.

Article 35A was inserted in the Appendices of the Constitution through a Presidential Order and not by an Amendment to the Constitution. The petitioner challenged its constitutionality in the court.
The Supreme Court issued notices to both the Jammu and Kashmir government and the Centre in December 2015. The Jammu and Kashmir government filed its reply one year later.

TRICKY RESPONSES FROM STATE, CENTRE

The state government, of which the BJP is a constituent, stated that as the Article is there for more than 60 years and enjoys the status of law. It said that it would not be appropriate to tinker with the arrangement.

The Centre has filed its only recently saying that the matter involves complex issues of constitutionality and the government has no view on it. It said that it would appropriate for the Supreme Court to decide the matter.

The Centre further told the two-judge bench of the Supreme Court earlier this month that it would be better if a larger bench was constituted to hear the matter. The Supreme Court has now decided to set up a three-judge bench to hear the constitutional legality of Article 35A. The matter is scheduled for hearing in August.

"As it seems, this matter involves scrutiny of the Article 35A as the guidelines laid down in Article 368, which provides for Amendment in the Constitution. In the Supreme Court, Article 35A will have to stand the test of Article 368," Supreme Court lawyer Atul Kumar told India Today.

WHAT IF ARTICLE 35A IS DECLARED UNCONSTITUTIONAL?

If Article 35A is declared invalid in the Supreme Court, it may have some far reaching implications. The immediate implication would be that all the 41 subsequent Presidential Orders, each of which was an amendment to the 1954 Order, would become invalid.

This would also mean that the Governor and the Chief Minister would be addressed as the Sadr-e-Riyasat (President) and Wazir-e-Azam (Prime Minister) in Jammu and Kashmir.

The extent of authority of the Supreme Court and the Election Commission of India would also be curtailed. Using Article 35A, the government of India has made 94 of 97 entries in the Union List applicable in Jammu and Kashmir. A total of 260 of 395 Articles of Indian Constitution are applicable in Jammu and Kashmir via Article 35A.

The control of the Centre on Jammu and Kashmir would legally be limited to only Defence, External Affairs and Communication. The repeal of Article 35A would mean a reformulation of legal arrangements with Jammu and Kashmir with the government of India.

The RSS is of the view that with the Narendra Modi government at the Centre, a favourable arrangement can be arrived at paving way for permanent solution to the Kashmir problem.

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