Article 35A and why Kashmir is against any “tinkering” with it

By Prarthana Mitra

On August 5-6, Kashmir observed a state-wide shutdown to protest the abrogation of Article 35 A, the hearing for which was scheduled on Monday. According to reports, the Supreme Court has adjourned it for August 26, announcing that it will examine Article 35 A only if it affects the ‘Basic Structure’ of the Constitution. The investigation will pertain only to violations of equality, non-discrimination, liberty, life and dignity.

Who are against the article?

Along with pro-freedom leaders, all political parties and student bodies stand opposed to the changes proposed by Delhi-based NGO, ‘We the Citizens’, and a few other groups. While some have argued that the article is crucial to the conflict-ridden state and its people, as it safeguards and defines permanent statehood, the petitioners believe that the law, which was broached and implemented 70 years ago by then-President Rajendra Prasad, discriminates between Kashmir and the rest of the country.

Why was it put in place?

In 1954, the Jawaharlal Nehru cabinet felt that Article 35 A was needed to consolidate what Article 370 was trying to achieve. Kashmir, which was a princely state, entered the Indian fold after independence and a long diplomatic struggle with Article 370 that extended Indian citizenship to the “State Subjects” and granted it special status. Article 35 A, broken to its essential elements, gives the state legislature a carte blanche on decisions regarding the permanence and privileges of Kashmiris, like the right to a public sector job, acquisition of property within the state, scholarships and other public aid and welfare programmes.

Does it stand for dsicrimination or protection?

One of the writ petitions claims that the law was never constitutionally ratified, claiming Article 370 to be a temporary provision in order to bring normality to J&K and strengthen democracy in that state. They also hold Article 35 A to be against the “very spirit of oneness of India” that creates a separate “class within a class of Indian citizens.” Restricting citizens from other states from getting employment or buying property within Jammu and Kashmir was a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.

However, given the volatile condition of Kashmiri society and politics, any amendment to dilute the article stands to change the demographic fabric of the state. Without Article 35 A which currently prohibits non-residents to settle down, buy land, own or bequeath property, the Muslim majority state faces socio-economic threats from several fronts. Its absence will not only pave the way for an influx from the rest of the country, leaving the state without any safeguards for the resources meant for its permanent residents, it will cause further erosion of what’s left of Kashmir’s autonomy. For the pro-freedom activists, this looks like yet another attempt by the centre to integrate the region with the rest of the country completely.

Former Chief Minister and PDP President, Mehbooba Mufti, firmly declared in a recent rally that safeguarding the special status of the State had always been her party’s top agenda and any “tinkering would turn the state into a veritable inferno.” As the freedom movement in Kashmir rages on till the next hearing, one can only hope that the Supreme Court is the one casting the deciding vote, not the Parliament.

Prarthana Mitra is a staff writer at Qrius


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