Opposition To Article 35A Has Merit
Articles 35A, 370 have fostered alienation which gets exploited by separatists, terrorists
With the Supreme Court indicating that the constitutionality of Article 35A would be examined by a constitution bench of five judges, it provides an opportunity to approach this issue, as also Article 370, from a legal perspective, removed from the political and at times passionate discussion, which have been the norm in this regard.
Any discussion about Article 35A is incomplete without going back in time by almost a century to 1927 when Hari Singh, then ruler of the Jammu and Kashmir passed an order, which provided that state subjects would be preferred to outsiders for employment in government services. It provided for three classes of state subjects depending on the basis of certain parameters: year of birth, or being permanent residents, or having acquired land under a rayatnama of the state. By virtue of this order, outsiders were not allowed to purchase land in the state or apply for state government employment. This was followed by another order issued in 1932, which prescribed certain criteria for foreign nationals to be eligible as state subjects on fulfilling of certain conditions like acquiring land under an ijazatnama and on obtaining a rayatnama after ten years’ continuous residence in the Jammu and Kashmir state. Simply put, these provisions left some scope for non-state subjects or outsiders to acquire land and be treated as state subjects.
However, what is interesting to note that Justice AS Anand in his book “The Constitution of Jammu & Kashmir” has referred to certain documents/writings
which indicates that these orders apparently benefited the people of the Jammu region rather than those in Kashmir, leading to disenchantment in the Valley, but strangely, Article 35A, which is derived from these orders, is today being supported by those who were apparently discriminated against. And here lies the catch in the entire episode, as any discussion delving into the intricacies of Article 35A is stonewalled by raising the banner of Article 370.
KNOW THE LAW
The state of Jammu and Kashmir became part of the Indian Union in October, 1947 by way of an Agreement of Accession. What needs to be emphasized is that this agreement was no different from the ones signed by the other 561 princely states, meaning that the accession was complete in all respects and irreversible. Article 370 was brought into the Constitution given the circumstances prevailing in those days, but unlike other provisions of the Constitution, this was kept in Chapter 21 dealing with “Temporary, Transitional & Special” provisions, making it clear that Article 370 was only a temporary and transitional provision. Though the proponents of the continuance of Article 370 over-emphasize the “Special” aspect, the fact remains that the Constituent Assembly was clear that it will be a “Temporary” and “Transitional” provision. Under this Article, the President of India is authorized to extend provisions of the Constitution to Jammu and Kashmir with modification or alteration by way of a Presidential Order in consultation with the state government.
To this end, the first Presidential order was issued in the year 1950, extending applicability of certain provisions of our Constitution to the state. The second was issued in 1954 and it was through this order that Article 35A, a new provision, was added to the Constitution after Article 35. In other words, a Presidential Order brought about an amendment to the Constitution without following the elaborate procedure laid down in Article 368 and Article 35A got a backdoor entry to our Constitution. What is even more surprising is that you will not find this Article after Article 35 in any of the bare acts of the Constitution, as is required when a Constitutional amendment is brought about. For example, when “Right to Education” was brought in, it was given place below Article 21 as Article 21A, but in this case, the text of Article 35A is not to be found in the main body of the
The provisions of Article 35A are also contained in Articles 6 to 10 of the Jammu and Kashmir Constitution, even though by virtue of Article 5 of the Constitution of India, all residents of Jammu and Kashmir are citizens of India enjoined with various rights but not vice versa
Constitution but in the Appendix! What is worrisome is that a provision like Article 35A has received little or no academic attention until recently.
TRAVESTY OF CHAPTER III
Article 35 forms part of the “Fundamental Rights” chapter, and Article 35 A having been added after this provision ipso facto becomes part of the same chapter, but ironically, in essence and substance, it curtails the fundamental rights of a vast number of citizens of our country. In a nutshell, Article 35A is nothing but a restricted version of the 1927 & 1932 Orders empowering the state legislature to determine who are permanent residents of the state and confer on them various special rights and privileges while imposing restrictions on others in respect of employment, the acquisition of immovable property, settlement in the state, right to scholarships and such other forms of aid as will be determined by it.
The provisions of Article 35A are also contained in Articles 6 to 10 of the Jammu and Kashmir Constitution, even though by virtue of Article 5 of the Constitution of India, all residents of Jammu and Kashmir are citizens of India enjoined with various rights but not vice versa. After a protracted legal battle, in 2002, a full bench of the Jammu and Kashmir High Court held that even after marriage to outsiders, such women will not lose out on their permanent resident status; but efforts were made by the then ruling dispensation to nullify the same though a bill that was passed in a record six minutes! After much protest from the BJP, then in the opposition, as also its then coalition partner, the Congress, the bill was withdrawn. Though the 2002 judgment gives some hope women who have married outside the state, their children still do not have any rights as they are not included in the permanent resident category. In fact, one of the petitions pending before the Supreme Court highlights this aspect of discrimination and it is time that this issue is settled once and for all.
HYPOCRISY OF J&K CONSTITUTION
In recent years, we have been witness to outrage against the violation of human and constitutional rights of deprived sections of society all across the country. However, the plight of about 200 Valmiki families who were brought from Punjab to Jammu and Kashmir in 1957 to be employed as Safai Karamcharis have received no attention from the otherwise voluble activists, or for that matter, the media. These families were promised “permanent resident status,” but 60 years on, their status is still in limbo. Even though many members of these families have the educational qualifications required to apply for government employment, they are not entitled to do so except as Safai Karamcahris. They can vote for the Lok Sabha elections but not for local bodies or the Jammu and Kashmir legislature. Above all, the colony that was allotted to them has still not been regularized after all these years.
Another glaring instance of discrimination pertains to the refugees from West Pakistan who migrated to Jammu and Kashmir after partition. All those who came from Pakistan during partition and settled in other places of the country were granted all the rights
fuLcrums Of vALLEy: Dr Karan singh and mP farooq Abdullah launched “Nehru’s Kashmir” book cover
PONDErINg mOmENTs: J&K cm mehbooba mufti with deputy cm Nirmal singh at an all-party meeting in srinagar