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Unrest In Kashmir: Why Is Article 35A So Controversial?

On Friday, the Home Ministry sent out a notification to the state of Jammu & Kashmir asking the pilgrims to curtail the rest of the pilgrimage to the holy deity of Amarnath and move out of the state at the earliest possible. Amid a potential security threat and infiltration by Pakistan, 38,000 additional troops have been sent to the different vulnerable spots of Jammu & Kashmir. On the request of the state’s Governor, Indian Air Force has deployed C-17s Globe-master aircraft to airlift pilgrims. The motive behind such heavy deployment of paramilitary forces is still unclear. Speculation is rife that the Modi government is planning to revoke article 35A and article 370 that has been at the forefront of all the agendas of the lotus party.

What is Article 35A?

Article 35A was incorporated in the Indian Constitution by a Presidential order in 1954 that confers special rights and privileges upon the permanent residents of Jammu & Kashmir. Some of the privileges which the permanent residents enjoy are employment under the state government; acquisition of immovable property in the state; a settlement in the state; or right to scholarship and such other forms of aid as the state government may provide.

Who are the permanent residents?

The Constitution of Jammu & Kashmir came into force on 26th January 1957. It retained the definition of permanent residents of the state of J&K. All persons who are born or settle within the state before 1911 or after having lawfully acquired the immovable property resident in the state not less than 10 years before that date are permanent residents. All emigrants from J&K, including those who are migrated to Pakistan are considered as state subjects. The permanent residents’ law prohibits the non-permanent residents to acquire property in the state, government jobs, settlement in the state, scholarships, etc…

Evolution of Article 35A 

With the help of the notifications of 1927 and 1932, the Dogra ruler of princely state Maharaja Hari Singh imposed a law that defined the state subjects and their rights and the term of regulating migrants to the state. In October 1947 when the Instrument of Accession was signed by Hari Singh, Jammu and Kashmir came under Indian territory. Thereafter Sheikh Abdullah took over the charge and reins from the Dogra ruler Hari Singh.

1949 and ‘Article 370’

In negotiations with the then Prime Minister of India Pundit Jawaharlal Nehru, Sheikh Abdullah succeeded to get ‘Article 370’ inserted in the Indian Constitution. Article 370 guarantees ‘special status to Jammu & Kashmir’. Accordingly, all the provisions of the Indian Constitution do not apply to it. However, the three areas were restricted to the Union Legislative powers; Defense, Communications and External Affairs.

Root Cause of the conflict/Legal Route to revoke Article 35A

Article 35A was incorporated in the Constitution in 1954 by an order of the then President Dr. Rajendra Prasad on the advice of the Nehru cabinet. The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement, entered between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.

In 2014, a writ petition was filed in the Supreme Court by an NGO ‘We the Citizens’ challenging the validity of both ‘Article 35A’ and ‘Article 370’. It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of Jammu and Kashmir was never accorded any special status in the Constitution.

It argues that Article 35A was added by the Presidential order, not as per the provisions of ‘Article 368′ of the Indian Constitution, no amendment happened as the article came into effect immediately without any consensus building. It was evident that the Parliament was not consulted or no legislation had been laid to grant special provisions to the permanent resident of J&K.

Challenge before the Supreme Court

A batch of petitions challenged the constitutional validity of Article 35A. In 2018, a Supreme Court bench headed by the then Chief Justice of India JS Khehar referred the matter to a three-judge bench.

The NGO, in its petition, argued that Article 35A goes against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”.

Another petition, filed by lawyer Charu Wali Khanna, claims Article 35A discriminates against a woman’s right to property

Dalit Rights, Women Rights, and Human Rights issues

In 1957, Valmik community was imported from neighbouring Punjab to J&K after the state faced a serious crisis of sanitation due to the strike and agitation by the manual scavengers. They were guaranteed citizenship under article 35A but on the cost of practicing the ill practice for life long. Even if they wanted jobs, they would be given sanitation jobs in the government, so as their forthcoming generation. Any Kashmiri woman who gets married to a non-Kashmiri would be a subject of boycott from the ancestral or patriarchal property rights. But it was challenged in J&K HC and the verdict came in support of women as it ordered women will get rights in the property but the children/child of that woman won’t be a part of any such succession rights. Hence they will be ‘disfranchised’.

Constitutional experts argue that Article 35A is the clear violation of fundamental rights as Article 14/15/16 guarantee ‘Right To Equality/Prohibition of discrimination on grounds of religion, caste, sex or place of birth/Equality of opportunity in matters of public employment, respectively. It also violates ‘Article 19’ that protects rights regarding freedom of speech and expression and Article 21 that ensures ‘Right to Life and personal liberty’.

(Views expressed are personal.)

By TIS Staffer
the authorBy TIS Staffer

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