There is hope among the daughters of Jammu and Kashmir that Article 35-A of the Indian Constitution, which makes unjust distinctions between the sons and daughters of the state, will also be scrapped by the apex court.
The Supreme Court’s landmark verdict, of 22 August, that declared “unconstitutional, arbitrary and whimsical” the 1400-year-old controversial practice of instant talaq has dramatically changed the socio-political scene of Jammu and Kashmir. It has filled the hearts of daughters of the state with hope.
Like in the rest of the country, the women in the state have, irrespective of their religious denomination and regional compulsions, welcomed the verdict.
The judgement has rekindled the hope that Article 35-A of the Indian Constitution, which makes humiliating, invidious and unjust distinctions between the sons and daughters of Jammu and Kashmir, will also be scrapped by the apex court.
The new hope has stemmed not only from the fact that the operative part of the verdict, delivered by a 3:2 majority, clearly said the “practice of triple talaq was violative of Article 14 of the Indian Constitution (equality and non-discrimination)”; it also stems from the fact that three judges didn’t endorse the view of Justice S Abdul Nazeer that triple talaq had “got protection under Article 25 of the Constitution”. They were of the view that Article 25 could not be applied in this case as it involved the cardinal principle of equality and non-discrimination.
And then there was Prime Minister’s Independence Day address from the ramparts of the Red Fort in which he said his government was committed to women empowerment and gender equality. This precisely was the stand of the Government of India in the apex court.
The women of Jammu and Kashmir also have renewed belief now because of the stand taken by the Government of India on the crucial public interest litigation on Article 35-A. The Government of India, unlike the Jammu and Kashmir government, has not filed any affidavit in the Supreme Court. Contrarily, it has twice told the apex court that Article 35-A was a “sensitive” issue which needed a “wider debate”.
“It is a ‘very sensitive matter’ which would require a ‘larger’ debate. There are Constitutional issues involved in it and it should be heard by a larger bench,” Attorney General K K Venugopal twice told the Supreme Court. On the other hand, the Jammu and Kashmir government took the stand that “Article 35-A is a settled issue” and “it is a permanent Article”.
However, it was the stand of the union government that prompted the Chief Justice of India to suggest that the whole case could be transferred from the existing three-judge bench to five-judge Constitutional bench for its disposal. The case is listed for hearing on 29 August.
So, the hope of the daughters of Jammu and Kashmir is as justifiable as it is tenable. After all, the case of the women in the state, including Charu Wali Khanna and Dr Seema Razdan, and the non-governmental organisation “We The Citizens”, who have approached the Supreme Court to obtain justice, is almost identical to the case which the oppressed and discriminated Muslim women fought relentlessly in the highest court of justice of the country for years, and finally received justice.
Article 35-A gives absolute power to the Jammu and Kashmir government to define the classes of persons who are, or shall be, permanent residents of the state, or confer on such permanent residents any special rights and privileges or impose upon persons any restrictions in matters relating to employment under the state government, acquisition of immovable property in the state, scholarships and to such other forms of aid as the state government may provide.
In effect, Article 35-A considers all Indians, barring the permanent residents of the state, as persona non-grata in Jammu and Kashmir and deprives the children of the daughters of the state, married outside to non-permanent residents of Jammu and Kashmir, of any right available under the Jammu & Kashmir Constitution of 1957.
This Article was applied to Jammu and Kashmir on 14 May 1954 through a Presidential Order without invoking Article 368 of the Indian Constitution. Article 368 says not a word can be deleted from or added to the Constitution without taking the Parliament into confidence. Significantly, Article 35-A is not part of the main body of the Constitution. It finds mention only in an appendix.
It needs to be noted that not one but three petitions challenging the validity of Article 35-A have been filed in the Supreme Court. These include writ petitions 722/2014, 871/2015 and 396/2017. “We the Citizens”, refugees from West Pakistan (all Hindu and Sikh) and Charu Wali Khanna and Dr Seema Razdan, respectively, filed these three petitions.
All the petitioners want the Supreme Court to declare Article 35-A as unconstitutional, discriminatory and against the very spirit of Article 14 of the Indian Constitution.
Charu Wali Khanna and Dr Seema Razdan have, in addition, said in their petition that their children are considered “illegitimate”, as they got married to non-permanent residents of the state. As for the refugees from West Pakistan, they have said in their petition that they have been living in various parts of Jammu since their migration in 1947, but they have no right to property, no right to vote, no right to higher and technical and professional education, no right to a government job and no right to a bank loan in Jammu and Kashmir because they do not possess permanent resident certificates. They are Indian nationals, but not residents of the state.
As for separatists like Syed Ali Shah Geelani, Mirwaiz Umar Farooq and Yasin Malik, they have said that “Article 35-A is a matter of life and death”. On 23 August, they also issued a protest calendar. Their protest demonstrations would start on 25 August and conclude on 29 August with a shutdown across Kashmir.
This is the whole situation. Article 35-A is a litmus test both for the Prime Minister and the Supreme Court. Litmus test for the Prime Minister because on 15 August he pledged unstinted support to the issue of women empowerment and equality. And litmus test for the Supreme Court because on 22 August it preferred Article 14 over Article 25. Article 35-A is unconstitutional and it has to go lock, stock and barrel.
Even otherwise, it has to go because there can’t be two laws in India, one for Jammu and Kashmir and another for the rest of the country which are contradictory to each other and undemocratic in nature.
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Petrol in India is cheaper than in countries like Hong Kong, Germany and the UK but costlier than in China, Brazil, Japan, the US, Russia, Pakistan and Sri Lanka, a Bank of Baroda Economics Research report showed.
Rising fuel prices in India have led to considerable debate on which government, state or central, should be lowering their taxes to keep prices under control.
The rise in fuel prices is mainly due to the global price of crude oil (raw material for making petrol and diesel) going up. Further, a stronger dollar has added to the cost of crude oil.
Amongst comparable countries (per capita wise), prices in India are higher than those in Vietnam, Kenya, Ukraine, Bangladesh, Nepal, Pakistan, Sri Lanka, and Venezuela. Countries that are major oil producers have much lower prices.
In the report, the Philippines has a comparable petrol price but has a per capita income higher than India by over 50 per cent.
Countries which have a lower per capita income like Kenya, Bangladesh, Nepal, Pakistan, and Venezuela have much lower prices of petrol and hence are impacted less than India.
“Therefore there is still a strong case for the government to consider lowering the taxes on fuel to protect the interest of the people,” the report argued.
India is the world’s third-biggest oil consuming and importing nation. It imports 85 per cent of its oil needs and so prices retail fuel at import parity rates.
With the global surge in energy prices, the cost of producing petrol, diesel and other petroleum products also went up for oil companies in India.
They raised petrol and diesel prices by Rs 10 a litre in just over a fortnight beginning March 22 but hit a pause button soon after as the move faced criticism and the opposition parties asked the government to cut taxes instead.
India imports most of its oil from a group of countries called the ‘OPEC +’ (i.e, Iran, Iraq, Saudi Arabia, Venezuela, Kuwait, United Arab Emirates, Russia, etc), which produces 40% of the world’s crude oil.
As they have the power to dictate fuel supply and prices, their decision of limiting the global supply reduces supply in India, thus raising prices
The government charges about 167% tax (excise) on petrol and 129% on diesel as compared to US (20%), UK (62%), Italy and Germany (65%).
The abominable excise duty is 2/3rd of the cost, and the base price, dealer commission and freight form the rest.
Here is an approximate break-up (in Rs):
a)Base Price | 39 |
b)Freight | 0.34 |
c) Price Charged to Dealers = (a+b) | 39.34 |
d) Excise Duty | 40.17 |
e) Dealer Commission | 4.68 |
f) VAT | 25.35 |
g) Retail Selling Price | 109.54 |
Looked closely, much of the cost of petrol and diesel is due to higher tax rate by govt, specifically excise duty.
So the question is why government is not reducing the prices ?
India, being a developing country, it does require gigantic amount of funding for its infrastructure projects as well as welfare schemes.
However, we as a society is yet to be tax-compliant. Many people evade the direct tax and that’s the reason why govt’s hands are tied. Govt. needs the money to fund various programs and at the same time it is not generating enough revenue from direct taxes.
That’s the reason why, govt is bumping up its revenue through higher indirect taxes such as GST or excise duty as in the case of petrol and diesel.
Direct taxes are progressive as it taxes according to an individuals’ income however indirect tax such as excise duty or GST are regressive in the sense that the poorest of the poor and richest of the rich have to pay the same amount.
Does not matter, if you are an auto-driver or owner of a Mercedes, end of the day both pay the same price for petrol/diesel-that’s why it is regressive in nature.
But unlike direct tax where tax evasion is rampant, indirect tax can not be evaded due to their very nature and as long as huge no of Indians keep evading direct taxes, indirect tax such as excise duty will be difficult for the govt to reduce, because it may reduce the revenue and hamper may programs of the govt.