PRICKLY ARTICLE ‘35A’

BY SUNIL DANG

Every now & then we hear this chatter around Article ‘35A’ getting louder. Strange it may sound; none of us had been as sensitised to this issue before as we are now, courtesy a slew of applications in the court seeking quashing of this contentious article. To put things in perspective, it was in 1954, that the Article 35A was included in the Constitution by the orders of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. This was part of the understanding between the Maharaja of Kashmir, Hari Singh, and the republic of India to protect the privileges of Kashmiri residents from outsiders. We can even trace its emergence in the 1927 Hereditary State Subject Order passed by Maharaja after the Pandit community had launched the “Kashmir for the Kashmiri” movement.

This Article which came into force about six decades ago may now require a relook. Maybe the resolution could be found in the threesome panacea for Kashmir revolving around insaniyat (humanity), jamhooriyat (democracy) and Kashmiriyat (Kashmiri values) espoused by none other than the former Prime Minister Atal Bihari Vajpayee. The current Prime minister may have started well too but perhaps squandered the chances he got, mid-way, to light the flame of hope for thousands, who could win back their rights to land & property back home.

There in an inherent flaw in the classification created by Article 35A, by virtue of which it treats non-permanent residents of J&K as ‘second-class’ citizens. This large left out community is not eligible for employment under the State government and is also debarred from contesting elections. Meritorious students are denied scholarships and they cannot even seek redress in any court of law. The major sufferers are women who marry outside J&K. Though they retain their Permanent Resident Certificate, their children cannot be permanent residents. This restricts their basic right of inheritance. Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.

The curious thing though is how did such a provision get stuck in the constitutional scheme of things for such a long period of time even when the parent article 370 in itself was meant to be a “temporary & transient” provision that got drafted for whatever contingencies the government might have faced at that point in time. It is difficult to comprehend the sagacity or the lack of it that would have convinced the Nehru cabinet of its relevance in future day India. Even the current government seems uncertain on how to tackle this issue given that there have been numerous flip flops & the court adjournments sought in matters aligned to this vexed article.

From a historical perspective, it was following the adoption of the provisions of the Delhi Agreement by the Constituent Assembly of J&K, the President of India issued “The Constitution (Application to Jammu And Kashmir) Order”, 1954 which inserted the Article 35-A into the Indian constitution enabling the state legislature to ‘safeguard the laws’ defining the privileges of the permanent residents. Contrary to the belief that Article 35-A ‘directly’ gave special privileges to the “permanent residents”, it actually safeguarded the laws that had been and were promised to remain the sovereign functions of the state of Jammu and Kashmir.

However we can clearly see that the issue is no more than a political controversy and that it must either be put to rest by the courts or by a repeal of the Presidential proclamation that had got it the might & teeth that it wields today.

For this to happen, the Government may have to demonstrate enough will & resolve to correct the never ending disparity & ring in equality as the guiding principle enshrined in our constitution. It is necessary to give confidence to the residents of J&K that any alteration in status quo will not take away their rights but will boost J&K’s prosperity as it will open doors for more investment, resulting in new opportunities.