Article 35A is almost like apartheid

Article 35A is almost like apartheid

By Vijay Kranti | New Delhi | 3 September, 2017
Supreme Court, Article 35A, Charu Wali Khanna, Seema Razdan Bhargav, J&K, Kashmir valley, Farooq Abdullah
The abrogation of 35A is bound to receive a thunderous welcome from many sections of J&K communities, to whom this Article is a symbol of what they call ‘Kashmiri colonialism’ over the rest of the state.
The ongoing fireworks between various terrorist groups and Indian security forces in Kashmir Valley appear to be reaching a critical stage. It may be a coincidence that a constitutional debate on an issue, which has serious political, social and security consequences for Jammu and Kashmir too has entered a critical phase in the Supreme Court.

A group of petitions in the Supreme Court, filed separately by some Kashmiri women and a Jammu based NGO have challenged the constitutional validity of a special law, namely Article 35A of the Indian Constitution. This Article, introduced by a Presidential order in 1954 into the Indian Constitution, gives the J&K Assembly special rights to frame its own laws to define who can, and cannot, be “permanent resident” of the state. As a result, J&K is the only state in the Indian Union which has the powers to control rights and liberties of other Indian citizens in J&K.

Seema Razdan Bhargav and Charu Wali Khanna are among those Kashmiri women who are contesting the constitutional validity of Article 6 of J&K’s state Constitution on the ground that it takes away the citizens’ rights of those Kashmiri women who decide to marry a man of non J&K origin. While this law denies basic the right of a Kashmiri woman’s husband and children to live in the state and enjoy all the Constitutional rights due to a “state subject”, it also debars her children from inheriting the immovable property of her parents, or even seek admission in state-run higher educational institutions, or state government employment. Her contention is that since Article 6 supersedes her and her children’s basic rights of residence, education and employment as guaranteed to them as “citizens” of India under Article 14 of Indian Constitution, therefore, 35A is unconstitutional and hence deserves to be declared invalid.

Interestingly, it was on the strength of 35A that the J&K Assembly adopted Article 6 for this purpose in 1956. “We the Citizens”, the Jammu based NGO, has challenged the constitutional validity of Article 35A. Its contention is that this Article was introduced in the Indian Constitution in 1954 only through a Presidential order. The NGO argues that although it is within the rights of the President to pass such orders, yet any such order can become a part of the Indian Constitution only after it gets approval of both Houses of Parliament by a majority vote. It has also questioned the intentions of the erstwhile Central government for including this Article only as an “annexure” of the Constitution and not incorporating it in the main text of the Constitution.

In view of the common nature of all these petitions, the Supreme Court decided to bunch these cases together and forwarded it to a Constitution Bench to review the Constitutional validity of 35A. In case the bench comes with the opinion, and chances are no less, that the introduction of 35A was faulty or unconstitutional, all special powers of J&K Assembly to separately formulate laws on permanent residence and hence Article 6 too will go to the dustbin. This will open J&K’s doors to every other Indian citizen like any other state of India. The experience of the past six decades shows that Article 35A has come to stay as the fountainhead of an unfortunate kind of exclusivity, which has deeply ingrained a sense of separation, confrontation and arrogance towards the rest of India in the hearts of a vocal section of political, social, intellectual and religious leadership of Kashmir. While focused violence against non-Muslim citizens of Kashmir valley has been persistently forcing them to quit the valley during the past seven decades, Article 6 of the J&K Constitution effectively blocks any inflow of “outsiders”.

The experience of the past six decades shows that Article 35A has come to stay as the fountainhead of an unfortunate kind of exclusivity, which has deeply ingrained a sense of separation, confrontation and arrogance towards the rest of India in the hearts of a vocal section of political, social, intellectual and religious leadership of Kashmir. 

As a result of this process, the Kashmir valley has won the distinction of being the only social theatre of India, where population flow has become one-way, and ethnicity specific, since the day the state became a part of the Indian Union. A systematic inflow of Pakistani infiltrators and Wahhabi maulanas from Uttar Pradesh and Bihar to the valley over the past seven decades has only made things worse.

All this has led to a system, which is supported by a Constitutionally approved apartheid. Nullifying 35A is bound to water down the impact of Article 370 of the Indian Constitution, which gives special political, administrative and legal powers to the ruling elite of J&K, but has been opposed tooth and nail by a major section of the non-Kashmiri population in J&K and their supporters in the rest of India. If this happens, it will be a constitutional coup no smaller than the recent historic Supreme Court settlement of the triple talaq issue.

However, the mood is just the opposite in Kashmir valley. The prospect of 35A being struck down by the Supreme Court has suddenly brought together all those political, militant, religious and other activist groups in the valley that have been traditionally at war with each other and would have never agreed to sit down together until only a couple of months ago. These include the National Conference, the People’s Democratic Party, Congress and the Hurriyat. Interestingly, PDP leader and Chief Minister Mehbooba Mufti was the first to warn the Centre that “there will be no one left in Kashmir to give shoulder to the Indian tricolour if 35A is struck down”. Her archrival Farooq Abdullah, the former Chief Minister and head of the NC, went a step beyond her with his war cry to New Delhi, “Kashmiris will make you forget the upheaval of Amarnath movement when they rise up against nullifying of 35A.” Leaders of the Hurriyat and other fanatic groups too have launched a new calendar of hartals (public strikes) and warned New Delhi of a bloodbath if Supreme Court gives such a verdict.

Yet the abrogation of 35A is bound to receive a thunderous welcome from many sections of J&K communities, to whom this Article is a symbol of what they call “Kashmiri colonialism” over the rest of J&K. In their recent memorandums to the Union Home Minister, National Human Rights Commission and Ram Madhav, BJP’s points man on J&K, the Jammu Kashmir People’s Forum and POK Peoples’ Forum presented cases of nine such communities whose fundamental rights have been “legally” snatched by the state government. These rights include right to property; right to vote; right to employment; right to marriage by choice; right to higher education; right to be a member of panchayat or a cooperative society; and even the right to avail bank loans. These communities include refugees from POK who were forced to live and settle outside J&K after they crossed over to Jammu in 1947; Kashmiri Pandits and Sikhs who were forcibly pushed out of Kashmir valley; West Pakistan Refugees (WPR) who migrated to adjoining Jammu in 1947; families displaced due to regular firing along the LOC with Pakistan; Balmiki community members who were persuaded by Sheikh Abdullah to migrate from Punjab to J&K to undertake the scavenging of night soil; descendants of Gorkha soldiers of the Maharaja’s army; women of J&K who decided to marry men from other states; and the people of Ladakh who have to live at the mercy of the Kashmiri administration. Except for the exiled Pandit families and the people of Ladakh, all other communities mentioned in this list have been denied the status of permanent residents or state subjects because of Article 6 of the J&K Constitution, which draws its powers from Article 35A of the Indian Constitution.

Another rule derived from these two laws reminds one of Nazi Germany, where every Jewish person was made to wear one’s religious identity around one’s neck. In J&K, the rule makes the state administration brand the resident certificate of even third and fourth generation youths from Jammu’s Balmiki families with a stamp that announces “eligible only for job of scavenger”.

In 1981, the state Assembly used its absolute Kashmiri majority to pass a law, J&K Resettlement Act, which opened doors for those Kashmiris and their descendants who had migrated to Pakistan, or POK during Partition in 1947, to return to J&K as its legitimate citizens and take charge of their ancestral properties. However, JKPF and POKPF point out that the POK refugees and their descendants, numbering about 1.5 million today, have not only been kept out of this legal provision but the state government has consistently refused to let them or their descendants settle in J&K as “state subjects”. These communities have been demanding their right to those 24 seats in Assembly which are left vacant in the name of POK. Ironically, the Muslim refugees from Xinjiang and Tibet, who had migrated to Kashmir following the Chinese occupation of their countries in 1949 and 1959, respectively, have been granted “state subject” status, along with voting rights in the Assembly by the J&K government. If the ongoing Constitutional debate in the Supreme Court is being looked at with fear and apprehension by Kashmiri leaders and their separatist supporters, there are millions of other citizens of J&K who see a new ray of hope in the abrogation of Article 35A and hence of Article 6 of the J&K Constitution.

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