A political storm is brewing up as the central government has sought a "larger debate" over Article 35A of the Constitution, which empowers the Jammu and Kashmir legislature to define "permanent residents" of the state and provide special rights and privileges to them.
Approximately, 1.5 lakh Hindu’s, mostly Dalits migrated from West Pakistan in August 1947 as an aftermath of communal partition. These migrants, even after having stayed in the State of J&K for more than 70 years, have been denied citizenship rights to the State. Let’s read about this in detail.
What is Article 35A?
Background of Issue:
Jammu and Kashmir became a part of India through the instrument of accession signed by its ruler Hari Singh in October 1947.
After Jammu and Kashmir’s accession, Sheikh Abdullah (Sadr-i-Riyasat) negotiated Jammu and Kashmir’s political relationship with New Delhi, which led to the inclusion of Article 370 in the Constitution.
However, under the Delhi Agreement 1952 between Sheikh Abdullah and PM Jawahar Lal Nehru, several provisions of the Constitution were extended to Jammu and Kashmir via Presidential Order in 1954 including Article 35A.
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.
Reasons Leading to Art. 35A:
The Kashmir Constituent-cum-Legislative Assembly, using the provisions of Article 370 of Constitution of India, adopted Sections 6, 8 and 9 for incorporation in the J&K Constitution, under which the State was to be governed in the future.
The provisions of Section 6 included the following:
(I) “Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May 1954:
- He was a state subject of class I or of class II, or
- Having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to this date” and
(II) “any person who, before the fourteenth day of May, 1954 was a State Subject of class I or of class II and who, having migrated after the first day of March, 1947, to the territory – now included in Pakistan, returns to state under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State (basically meaning that Muslim migrants from Pakistan who had moved to India between March 1947 and May 1954 were given citizenship rights).
However, “no persons who had crossed over to the state of J&K after May 1944 will be considered eligible for citizenship rights”. The prime motive of this legislation was to deny citizenship rights to Hindu migrants from West Pakistan, who had migrated to the State in the wake of the hostile environment that existed during partition.
Sections 8 and 9 further strengthened the hands of the policymakers, as the former gives the State Legislature the right to define Permanent Residents and the latter empowers the State Legislature to alter the definition of Permanent Residents.
What does Article 35A entail?
(a) Defines the classes of persons who are, or shall be permanent residents of the State of Jammu & Kashmir, or
(b) Confers on such permanent residents any special rights and privileges or imposing upon other persons any restrictions, like:
- Employment under the State Government;
- Acquisition of immovable property in the State;
- Settlement in the State; or
- Right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part”.
Article 35A enabled the Jammu & Kashmir Constituent Assembly to deny citizenship rights to the refugees from West Pakistan and all other Indians, barring Permanent Residents of the State.
Also Check: Article 370
Major Objections Pertaining to the Provisions of Article 35A
Article 35A was added to the Constitution through a Presidential Order and not by following the procedure prescribed for amendment of the Constitution of India under Article 368, where this Constitutional amendment can only be made through a Parliamentary debate and voting. Hence, its legality is being questioned.
The classification of Permanent Resident Certificate created under the provisions of Article 35A suffers from the violation of Article 14, i.e. “Equality before Law”. Hence, the non-resident Indian citizens cannot have the rights and privileges, the same as permanent residents of Jammu and Kashmir.
Article 35A violates the rights of women to ‘marry a man of their choice’ by not giving the heirs any right to property or given a Permanent Resident Certificate if the woman marries a man who is not a permanent resident.
Safai Karamcharis (scavengers) who were brought to the State in 1957 were promised that they would be given Permanent Resident Certificates on the condition that they and their future generations continued to perform their scavenger duties. However, even after six decades of service in the State, their children are Safai-Karmacharis and they have been denied the right to quit scavenging and choose any other profession.
The industrial sector & private sector is suffering on account of no domestic investments coming in from other parts of India or businesses can be set up in the State due to the property ownership restrictions.
The refugees from West Pakistan who have been staying in J&K for 70 years are unable to enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu and Kashmir.
Lastly, it gives a free hand to the State government and politicians to discriminate between citizens of India, on an unfair basis and give preferential treatment to the State subjects.
Points in Support of Article 35A
It is being argued that similar provisions have been provided for other states, like Himachal and North Eastern states. However, no objections are being raised over there. Moreover, Article 370 was enacted on 26 November 1949 as part of the Constitution of India by the Constituent Assembly of India which was a sovereign body, and, Article 35A "flows inexorably" from it.
Further, Article 35A protects the demographic status of the Jammu and Kashmir state in its prescribed constitutional form. Any move to abrogate Article 35A would open the gates for a demographic transformation of the valley, amounting to breaking a promise made to the people of J&K at the time of the accession of the State to the Indian Union.
Article 35(A) of the Constitution of India, which has been applied to the State of Jammu and Kashmir, not only recognizes but clarifies the already existing constitutional and legal position and does not extend something new to the state of Jammu and Kashmir.
It is being argued that the provisions of Article 14 (as applicable to the State of J&K) are not being violated as it provides equal protection of laws to all its State subjects/citizens.
Lastly, as pointed out by the ex-chief minister of J&K, Mehbooba Mufti, “if we endeavour to weaken the uniqueness of Kashmir through judiciary, then those forces in Kashmir Valley, who want to put an end to the composite culture in Kashmir Valley and want to have people from one community (Muslims) only, with one attire and one way of life, you will only make them successful”.
Way Out:
Article 35A (1954) was incorporated in the Indian Constitution through a Constitutional amendment even before the Constitution of J&K came into existence (1956).
All above-mentioned provisions and legislation were drafted and accepted by ‘senior’ leaders of Independent India with the concurrence of the people of J&K and hence, it may be unfair to accuse only the people of J&K (Kashmir Valley) of creation / holding to such like provisions.
However, the evolution of a democracy is an ongoing process and it is never too late to bring about corrective actions that are for the overall betterment of the society.
The evaluation of the constitutional validity of Article 35A is what falls within the preview of the judiciary; it is the executive that will have to take the tricky call regarding the abrogation Article 35A. Centre government appointed interlocutor is already in the process of interacting with various stakeholders in the State to obtain their views.
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