Article 35A is in the news these days because of 2 petitions in the Supreme Court challenging its validity. This Article of the Indian Constitution empowers the Jammu & Kashmir Legislature to define “permanent residents” of the State and provides special rights and privileges to these ‘permanent residents’. A petition has been filed by a Delhi-based NGO ‘We the Citizens’ demanding that the Article be repealed because of its “unconstitutional character”. The matter has been referred to a larger bench due to its ‘sensitive’ nature and will be heard in September.
Article 35A is being challenged on the grounds that it was not added to the Constitution by a Constitutional amendment under Article 368. The BJP’s J&K Unit says that Article 35A is “not a sacred cow that cannot be touched.” They argue that Article 370 and Article 35A were always meant to be temporary provisions. The Party correctly defines the Article 35A as a provision that encourages alienation, deepens the concept of separate identity and creates a political gap between Jammu & Kashmir and the rest of India.
In 2015 Ashutosh Bhatnagar, Director of the think-tank ‘Jammu & Kashmir Study Centre’, while filing a petition against Article 35A, stated that the Article “was added in the Constitution by a Presidential Order in 1954. But it is against the basic structure of the Constitution, which even Parliament cannot amend. So this Article is unconstitutional, which was added without taking Parliament into confidence.”
The Article which is supposed to “protect the demographic status of the Jammu and Kashmir State in its prescribed constitutional form” is actually being misused to favour the Kashmiri Muslims of the Valley. In 1990 more than 4 lakh Kashmiri Hindus (including Pandits and Punjabis settled in Kashmir) were forced to leave, thus altering the said ‘demographic status’ of the region and making Muslims the 100% majority. This was clearly against the conditions existing in the State when the Article was introduced.
If we were to apply the conditions of Art 35A in the Jammu region, isn’t the deliberate attempt to settle Rohingya Muslims from Myanmar and Bangladeshi Muslims in the region altering the demographic status and skewing it in favour of the State’s Muslims? The Article is not the sole domain of the Valley’s Muslims and should have safeguarded the Dogras as well as the Ladakhis and Kashmiri Pandits of the State. The J&K Govt & Muslim politicians are blatantly resisting all attempts to displace the alien Muslim settlers while denying the same right to Hindu refugees from erstwhile West Pakistan.
According to Article 35A, the immovable property of a State Subject/citizen cannot be permitted to be transferred to a non-state subject. Obviously when it was framed, nobody envisaged the forced sale of thousands of Kashmiri Pandit properties, many of which were conveniently taken over by the ‘State Subjects’ belonging to the Majority Community! In one stroke, the Valley was turned into a 100% Muslim-dominated region enjoying a ‘special status’! Did those who framed this Article ever imagine that some ‘permanent residents’ of the State would be rendered Stateless?
One of the biggest drawbacks of this Article 35A is that it is gender-discriminatory.
The Permanent Resident Certificate issued by the State is ‘Valid Till Marriage’ in the case of female residents. When and if women belonging to J&K marry outsiders, they lose their right to buy and inherit property in the State. The children of these women are denied rights over any inherited property in the State. The second petition in the Supreme Court challenges this facet of Art 35A and has been filed by a Kashmiri Pandit woman married to a Punjabi.
Supreme Court lawyer Charu Wali Khanna has rightly questioned the Article’s discrimination against the women of Jammu and Kashmir.
Interestingly, this law doesn’t apply to the male residents, so Omar Abdullah’s children will continue to be ‘Permanent Residents’ and inherit his property, despite the fact that their mother happens to be a non-Kashmiri whereas, Omar Abdullah’s sister Sara who is married to Sachin Pilot, will not be able to pass on her inheritance to her offspring. And worse still, Kashmiri politicians married to Pakistani women will automatically pass on ‘citizenship’ rights to their next generation of Kash-Pak kids!!
There is another curious clause in Article 35A which includes residents of those parts of the State which are now under Pak-occupation, as ‘permanent residents’ of Jammu & Kashmir. So while Pakistan abrogated the State Subject Rule in 1974 in Gilgit Baltistan, the residents of that area can still cross over, marry and settle down in an integral part of India. Does that even make sense? That may well be one of the reasons why terrorists from Pakistan Occupied Kashmir and Gilgit Baltistan sneak into our State and move around freely after marrying local girls. The dangers such a clause poses to our nation’s security cannot be underlined enough.
Chief Minister Mehbooba Mufti defending the Article, says that 35A is needed as a bridge which connects Jammu & Kashmir with the rest of India. The discriminatory clauses in the Article however, have always alienated and kept the people of the State separate from the rest of the country. The ‘special rights and privileges’ it enshrines are being bestowed ONLY on the Kashmiri Muslims living in the Valley, the Dogras, Ladakhis, Gujjars and Kashmiri Pandits have never been privy to those ‘favours’! While the Kashmiri Muslims buy land and houses in every part of the State, settling down in huge numbers in Jammu, Rajouri, Poonch and other districts, there are no corresponding number of Dogras being encouraged to buy property in the Valley. One look at Ladakh and you see the number of Kashmiri Muslims settled there and doing business in Kargil and Leh, how many Ladakhis does one get to see on the streets of Srinagar?
So before calling any effort to examine and repeal the outdated Article 35A, as an attempt to ‘change the State’s demographics’, lets take a look at how the Article is being misused to blatantly skew the demography to favour the Valley’s Muslims. Farooq Abdullah warns of an ‘uprising’ if Article 35A is axed (‘The Economic Times’, Aug 7). He threatens that “When it will come to that decision ( abrogation of Art 35A), you will see this mass (of people) rising. Do not forget when that Amarnath Yatra (land row) thing happened, people rose overnight…35A will be far greater revolt and I wonder whether they (govt) will be able to hold that.” This ex-CM and now MP, along with his son Omar Abdullah has decided to embark on a ‘mission’ to educate the people of the State about the Article and the perils of abrogating it, from August 14 onwards. The date chosen is as sinister as the intent behind this venture!
This desperate attempt to instigate in the guise of ‘educating’ should be seen in the light of the recent Exposes by TV Channels and subsequent arrests by NIA of several dubious characters who go around calling themselves ‘Separatists’! There is evidently trepidation at the fear of the ‘special privileges’ they’ve taken for granted all this time, being taken away. Were the cloak of ‘separateness’ and ‘special status’ provided by Article 35A to be taken away, the list of wrongdoings by the ‘high and mighty’ of the Valley would certainly turn out to be long!
At a recent seminar entitled ‘Article 35A– Boon or Curse for Jammu’, the intelligentsia of the Jammu region described the provision as a bane rather than a boon, impeding the integration of the State with the rest of the country. The Speakers at this seminar, which was organised by the ‘Jammu Citizens Forum’, expressed the view that the abrogation of the Article would definitely be in the interest and welfare of the people of Jammu. (‘The Tribune’, August 6) Therefore when Farooq Abdullah ominously predicts that the abrogation of the Article would have dire consequences in all 3 regions of the State– Jammu, Kashmir and Ladakh — he would do well to remember that as MP of Srinagar, he can only speak on behalf of his own constituency!
In a series of tweets on the 7th of August, Omar Abdullah tracing the origins of the Article to Maharaja Hari Singh, tried to claim that 35A was meant to ‘safeguard’ Jammu from its neighbouring States! Mr Abdullah should remember that the demographic threat to Jammu comes from within the State rather than other States of India! The people of Jammu and Ladakh as well as the forcibly displaced Kashmiri Pandits, have faced discrimination in employment/promotions/admissions/distribution of financial aid, for decades with the majority community of the Valley grabbing all the ‘special privileges’ for themselves! If anything, Article 35A seems to have created an unequal power structure within the State.
It is definitely time to get rid of this obsolete and meaningless Article that has deprived the people of J&K of a national identity, keeping them aloof and segregated for so long. How can Kashmiri Muslims demand equal rights when they work/study/do business wherever they please while denying those very rights to their compatriots in their own State? It is definitely time the BJP Govt took the bull by the horns and ensured the principle of One Country One Law! Kashmiris need to get over their unfounded superiority complex and learn to live with others, supercilious laws that make them feel ‘special/privileged/separate’ will only make them take what they can from this country without giving anything in return.