Explainer: What is Article 35A and how does it affect J&K separatists

Late Friday night, February 22, 2019, Kashmir separatists and political leaders were arrested in raids across Srinagar. Close to 200 people have been arrested. Jammu and Kashmir Liberation Front Chief Yasin Malik is currently detained in police custody after his residence in Srinagar was raided.

The government withdrew police protection from Malik and other separatists and politicians in Kashmir due to a “lack of resources.”

Now, these same political leaders’ homes have been raided and arrested, in what seems like a large scale crackdown in the state ahead of the Supreme Court hearing arguments on Article 35A.

Crackdown in Kashmir

Sources say that the Centre has deployed 10,000 troops to Jammu and Kashmir amidst a crackdown on separatists in the state.

NDTV reports that the 130 people who have been arrested belong to the separatist movements Jamaat-e-Islami and the Hurriyat Conference.

Former Chief Minister of Jammu and Kashmir Mehbooba Mufti tweeted criticism of the government’s decision to raid Kashmiri homes.

She said, “In the past 24 hours, Hurriyat leaders & workers of Jamaat organisation have been arrested. Fail to understand such an arbitrary move which will only precipitate matters in J&K. Under what legal grounds are their arrests justified? You can imprison a person but not his ideas.”

Jamaat-e-Islami Chief Abdul Hamid Fayaz has been arrested. Malik is also the chief of the Hurriyat Conference.

After the recent attack in Pulwama that killed 40 Central Reserve Police Force (CRPF), the government has been entertaining military options to counter terrorism.

Three terrorists from Jaish-e-Mohammed, the group that took responsibility for the Pulwama attack, have been killed in a military operation.

In a speech to BJP workers, BJP President Amit Shah said that Modi has given security agencies “a free hand to decide on when and where to hit the perpetrators”.

Shah added that the Modi administration has a “zero tolerance policy towards terrorism”.

Home Minister Rajnath Singh said, “Separatism will not work, nothing can separate Kashmir from India”.

Journalist Azaan Javaid reports that police have said these military raids are connected to the upcoming general elections. He also said that protests have erupted in Kashmir demanding the release of Jamaat-e-Islami leaders.

Spokesperson for Pakistan’s Ministry of Foreign Affairs Dr. Mohammad Faisal tweeted that Foreign Minister Qureshi has sent a letter to the UN High Commissioner about the Indian government using the Pulwama attack as justification for the threats and violence against Kashmiris.

Editor of the Kashmir Walla Fahad Shah reported that the Kashmir Health department has ordered medical officers to prepare Rapid Response Teams.

Editorial Assistant of the Kashmir Walla Yashraj Sharma also said that residents are rushing to fill up their car tanks because authorities have issued an “advisory to limit” petrol supply in Srinagar.

These raids come mere days before the country’s apex court will hear arguments related to Article 35-A.

What is Article 35-A?

Article 35-A of the Indian Constitution was added by a Presidential Order in 1954, reports News18. It grants special rights to permanent residents of Jammu and Kashmir- people born before 1911 or have immoveable property passed down by descendents at least 10 years before that year.

Essentially, it dictates that no one except permanent residents of the state will be allowed to settle there, acquire immovable property like land, and qualify for government jobs.

Challenges to the article

However, the article is being challenged for ignoring due process and being discriminatory towards women.

News18 says that an NGO moved the Supreme Court to strike down Article 35-A because “it was illegally added to the Constitution as it was never floated before Parliament.”

Kashmiri political leaders, like the Hurriyat, believe that undoing this provision will lead to a forced and swift demographic change in the Valley, namely an influx of Hindus, that could create fear among minorities. Their property, rations, and jobs are also at risk.

Mufti told the Hindustan Times that the SC hearing cases on Article 35-A seems like an intimidation tactic. “Kashmir aligned with India under certain conditions. Article 35-A is part and parcel of this relationship”, she said.

In 2017, Advocate Charu Wali Khanna further challenged that the article is “heavily loaded in favour of males because even after marriage to women from outside, they will not lose the right of being permanent residents.” On the other hand, if women marry people out-of-state, they will lose their permanent residency.

In 2002, the JK High Court clarified that women who marry non-residents will not lose their rights, however their children will not have permanent residency.

The Supreme Court was supposed to hear this case last year.

However, because of disruption in the Jammu and Kashmir, the hearing was rescheduled to 2019 after local bodies in the state were elected that December.

No state or national authorities have issued statements regarding the arrests. Unrest is likely to continue or escalate, depending on when arguments on Article 35-A will be heard.

Rhea Arora is a staff writer at Qrius

Article 35AJammu and KashmirKashmirSeparatistsSupreme Court