The Supreme Court will likely hear a batch of petitions challenging the constitutional validity of Article 35A before Thursday, February 28; the Article grants special rights to Kashmiri ‘State subjects’.
The provision was incorporated post-Partition to give the Jammu and Kashmir Legislature carte blanche in determining permanent residents of the state.
Why did Article 35A make a comeback?
Last August, the top court had deferred the hearing till 2019 in view of the local bodies polls. Both the central and state governments, keeping the law and order aspect as well as the sensitivity of Article 35A in mind, agreed to postpone the hearing.
However, after the Pulwama terror attack, the question of revoking Article 35A staged a return to discourse.
Once again, the court finds itself addressing the controversial matter at a time of distress and dispute in the Valley. According to reports, the administration told the court to defer the hearing considering the ongoing tension in Kashmir.
The Article states no act of legislature under it can be challenged for violating the Constitution or any other law. But it also confers on them special rights and privileges, namely public sector jobs, acquisition of property and scholarships to public aid, subsidies, and welfare.
NGO files petition
A writ petition filed by an RSS-linked NGO We the Citizens challenges the validity of both Articles 35A and 370.
Article 370 was only a temporary provision to help bring normalcy and strengthen democracy in J&K, it contends. It was not intended to be a tool to bring permanent amendments, like Article 35A, in the Constitution.
It holds that Article 35A defies the very spirit of oneness of India, creating a class within a class… Restricting citizens from other states from getting employment or buying property within J&K further violates Articles 14, 19, and 21 of the Constitution, it claims.
A native follows suit
Meanwhile, a second petition by native Charu Wali Khanna challenges Article 35A for protecting certain provisions of the J&K Constitution; these restrict the basic right to property if a native woman marries a man without a permanent resident certificate (PRC).
Thus, it openly facilitates the violation of the right of women to marry a man of their choice. West Pakistani refugees, who subsequently gain Indian citizenship, are also deprived of rights and privileges enjoyed by permanent J&K residents.
Another criticism against it is that it violates the fundamental rights of SC/ST workers who have lived there for generations. For example, the Valmikis brought to the state in 1957 were granted PRCs on the condition that they continue as – (manual scavengers). Even after six decades of service, their children are denied the right to quit scavenging and choose other professions.
Read more: Political turmoil and mob violence in Arunachal Pradesh over PRC status for -APST tribes
Historically speaking…
A Presidential Order incorporated the provision into the Constitution in 1954, on the advice of the Jawaharlal Nehru Cabinet.
The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement, which Nehru entered into J&K PM Sheikh Abdullah, to extend Indian citizenship to Kashmiri State subjects. The Presidential Order was issued under Article 370 (1) (d) of the Constitution.
This provision allows the President even now to make certain exceptions and modifications to the Constitution for Kashmiri State subjects. That’s how Article 35A became a part of the Indian Constitution. It was never tabled in Parliament. The fact that the special rights afforded to Kashmiri subjects under the provision were introduced by means of an addition to Article 370, wrought from a Presidential Order, opens up grounds to oppose its constitutional validity.
Political tussle
The hearing assumes significance coming in the backdrop of J&K regional parties toughening their stand on the issue. The state is bereft of an elected government at the moment; the BJP pulled out of the ruling coalition with Mehbooba Mufti’s PDP over key differences, including on Article 35A, thus dissolving the assembly.
Most mainstream regional parties, NC, PDP and Peoples Conference support the safeguarding of Article 370 and Article 35A.
Mufti warned that any tinkering with Article 35A will render null and void the states Instrument of Accession with India. Article 370 is the constitutional connection between J&K and Indian Union. of accession is contingent on Article 370, which is inextricably linked to Article 35A. Any tampering will render Treaty of Accession null & void,” she said; meanwhile, speculation is rife about the move on the statute in the coming days.
Militant group Hizbul Mujahideen, in an unverified video message circulated in the Valley, has asked people to prepare for a decisive battle if Article 35A is tampered with. It has asked the J&K Police to not become a hindrance in peoples movement if that happens.
‘Leave it alone’
Pointing to Arunachal Pradesh’s situation, former CM and NC vice-president Omar Abdullah urged the Modi government to act rationally. “Please leave the contentious issues for the elected government in the state that would have representation from Jammu, Kashmir Ladakh,” he said.
“We owe it to our future generations to safeguard our political identity and special status that our ancestors and founding leaders fought for. The forces that are sponsoring these elaborate assaults on the state’s special status have been inimical to its interests and political identity from the very first day, but we fought them then and will fight them now.”
State Congress chief G A Mir said, “Special status granted to J&K is a settled issue; any misadventure with regard to Article 35A will deepen the alienation among the people, the fires of which will engulf the state.”
BJP ally and PC leader Sajjad Lone said tampering with Article 35A will be the murder of mainstream thought in Kashmir.
“Any alteration would be against the policy of federalism as envisaged by the framers of the Constitution,” former CPI-M legislator Yusuf Tarigami said in his interventional application to the apex court, in defence of Article 35A.
Autonomy and demography in peril
Various Articles in the Constitution provide special rights to states like Nagaland (Article 371A) and Mizoram (Article 371G) based on historical reasons.
Article 35A protects J&K’s demographic status in its prescribed constitutional form. Tinkering with it will lead to further erosion of the states autonomy.
In the last 70 years, the Valley’s demography has remained unchanged; this means the Hindus who form a majority in Jammu and the Buddhists in Ladakh all have rights to buy property and settle in the Valley.
“Kashmiris have come to regard the rights of permanent settlement as the only remaining piece of any meaningful autonomy,” former CM Mufti Mohammad Sayeed said recently, while speaking on the issue of West Pakistani refugees. “Before we do anything on this, we need to allay genuine fears that there is an attempt to change the demographics of the state.”
Prarthana Mitra is a staff writer at Qrius