Why in News?
The NDA government’s move to not file an affidavit and seek a “larger debate” and “larger bench” over Article 35A in response to two recent petitions in the Supreme Court challenging the Constitutional validity of the clause has expectedly given rise to shrill debates.
Bare text of Article
“35 A. Saving of laws with respect to permanent residents and their rights.— Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State: (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
(i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”
* Through 1927 and 1932 notifications, Dogra ruler of the princely state of J&K, Maharaja Hari Singh imposed a law that defined state subjects and their rights. The law also regulated migrants to the state. J&K joined India through instrument of accession signed by its ruler Hari Singh in October 1947.
* After J&K’s accession, popular leader Sheikh Abdullah took over reins from Dogra ruler. In 1949, he negotiated J&K’s political relationship with New Delhi, which led to the inclusion of Article 370 in the Constitution.
* Article 370 guarantees special status to J&K,restricting Union’s legislative powers over three areas: defence, foreign affairs and communications.
* However, under the 1952 Delhi Agreement between Abdullah and Nehru, several provisions of the Constitution were extended to J&K via presidential order in 1954. Article 35A was inserted then.
* J&K’s Constitution was framed in 1956. It retained Maharaja’s definition of permanent residents: All persons born or settled within the state before 1911 or after having lawfully acquired immovable property resident in the state for not less than ten years prior to that date. All emigrants from Jammu and Kashmir, including those who migrated to Pakistan, are considered state subjects. The descendants of emigrants are considered state subjects for two generations.
* Permanent residents law prohibits non-permanent residents from permanent settlement in the state, acquiring immovable property, govt jobs, scholarships and aid.
* It was also interpreted as discriminatory against J&K women. It disqualified them from their state subject rights if they married non-permanent residents. But, in a landmark judgment in October 2002, J&K high court held that women married to non-permanent residents will not lose their rights. The children of such women don’t have succession rights.
Arun Jaitley’s Views
In a column for Outlook in 2013, Arun Jaitley had pointed out the predicament of refugees who migrated to Jammu and Kashmir during partition. Jaitley, then leader of Opposition in Rajya Sabha, wrote about the “unfortunate” Indians not being conferred “state subjects” under Article 6 of the Jammu and Kashmir Constitution, which prevents them from voting or contesting Assembly, municipality or panchayat-level elections, holding state jobs, acquiring property. Their children were denied admission to colleges, scholarships or any other type of aid from the state.
“The effect of this”, wrote Jaitley, is that “these citizens of India are not entitled to the protection of Article 14 (equality), Article 15 (prohibition of discrimination on basis of religion, caste, race or place of birth), Article 16 (Equality of opportunity in matters of public employment and reservations), the fundamental rights under Article 19 including the right to free speech and the right to life and liberty under Article 21… The non-State subjects, who are citizens of India, who live in Jammu & Kashmir by virtue of Article 35A, are denied these protections.”
* An NGO, We the Citizens, challenged 35A in SC in 2014 on grounds that it was not added to the Constitution through amendment under Article 368. It was never presented before Parliament, and came into effect immediately, the group argued.
* In another case in SC last month, two Kashmiri women argued that the state’s laws, flowing from 35A, had disenfranchised their children.
It has been pointed out that since Article 35A is only a “clarificatory provision”, and does not in itself confer any special powers, seeking to scrap it is pointless because any such action must also include all other presidential orders of 1954, some of which extended several provisions of the Indian Constitution to Jammu and Kashmir in addition to the three areas of defence, foreign affairs and communication as defined under Article 370.
Cautioning the NDA government, historian Srinath Raghavan writes in Hindustan Times, “questioning the validity of this Article (35A) has no bearing on the rights of state subjects. Nor can the Presidential Order of 1954 be questioned without questioning the validity of other provisions of the Indian constitution it extended to J&K.”
Fear that it would lead to further erosion of J&K’s autonomy and trigger demographic change in Muslim majority valley. Political parties say Kashmir resolution lies in greater autonomy; separatists fan paranoia against possibility of Hindus ‘flooding’ the valley. However, in the last 70 years, demography of Kashmir Valley has remained unchanged even as Hindu majority in Jammu and Buddhists in Ladakh have rights to buy property and settle in the Valley.
It is imperative that the debate be held right now because Jammu and Kashmir is not just a political problem, it is also equally a security issue that has grave implications for India’s sovereignty, given the animus that defines our ties with Pakistan and the deterioration of bilateral relationship with China. Both these countries have the resources, motivation and will to exploit India’s festering political wound.
China has shown no compunctions in violating One India policy and building roads as part of the CPEC project through Gilgit-Baltistan, and recent reports suggest that it is ready to fund the $12-$14 billion Diamer-Bhasha mega dam project in Pakistan-occupied-Kashmir, which even the World Bank or Asian Development Bank refused to touch given Indian reservations. Nudged by China, Pakistan has duly agreed to declare PoK as its fifth province and legitimise its hold over a territory claimed by India.