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Dissension over Article 35A: Will J&K get a new governor after completion of Amarnath Yatra?

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Asit Jolly
Asit JollyAug 05, 2018 | 12:33

Dissension over Article 35A: Will J&K get a new governor after completion of Amarnath Yatra?

Only the J&K Assembly has the power to alter this definition.

Srinagar is forever brimming with conspiracy theories. And the newest is that Narinder Nath Vohra, who has been the governor of Jammu & Kashmir for the past 10 years, has finally been told to hang up his boots.

Coming just two and a half months since he was requested to stay on in the wake of the collapse of the People’s Democratic Party-Bharatiya Janata Party coalition government on June 19, it is being suggested that the ‘Lord Sahib’ has been asked to head home, because he asked Delhi to request a deferment of the August 6 hearing on the constitutional validity of Article 35-A.

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Many in Srinagar and Jammu are claiming that there will be a new man in the Raj Bhavan, weeks, if not days, after the culmination of the ongoing Amarnath Yatra.

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NN Vohra has finally been told to hang up his boots. (Photo: PTI)

A petition preferred by a Delhi-based NGO, We The Citizens, and individual petitioners including an 18-year-old Valmiki girl, Radhika Gill, had questioned the constitutional validity of Article 35-A. The imminent hearing has triggered a storm in the already-troubled Kashmir Valley with all mainstream political parties — Congress, National Conference and the recently deposed People’s Democratic Party — vehemently opposing any tinkering with the constitutional provision.

Congress MLA Usman Majid even went to the point of threatening a “civil war” in the Valley if the provision was scrapped. Separatist leaders, like Mirwaiz Umar Farooq and Yasin Malik, have said that “any attempt to alter the demography of the state by tinkering with Article 35-A, was so ‘intolerable’ that ‘Kashmiris would spill their blood’”.

Mirwaiz declared that “no court, whether in India or Pakistan, has any jurisdiction to take decisions that can affect the ‘disputed’ status of Jammu & Kashmir.”

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The National Conference said that any move to abrogate Article 35-A would “reopen the question of Jammu & Kashmir’s accession with the Union of India.”

NC’s provincial president in the Valley Nasir Aslam Wani said any such move would “invalidate the constitutional bridge that connects J&K to the rest of India.

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Mirwaiz declared that “no court has any jurisdiction to take decisions that can affect the ‘disputed’ status of Jammu & Kashmir" (File Photo: India Today)

So what is 35-A?

Brought in through a presidential order (The Constitution [Application to Jammu and Kashmir] Order, 1954) on May 14, 1954, it confers special rights on the J&K Assembly to define “permanent residents” of the states and designate special rights and privileges to them.

It grows from Maharaja Hari Singh’s Heriditary State Subject Order, 1927, which restricted government employment and ownership of land to state subjects. Ironically, this was done under pressure from Kashmiri Pandit community’s vociferous ‘Kashmir for Kashmiri’ movement.

Following the accession of J&K in October 1947, Hari Singh ceded control of external affairs, defence and communications and this was formalised by Article 370 in October 1949. Subsequently, the Delhi Agreement of 1952, accorded all state residents full Indian citizenship, and it was agreed that only the state government would be empowered to legislate on the rights and privileges of state residents.

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There will be a new man in the Raj Bhavan after the culmination of the ongoing Amarnath Yatra. (File Photo: India Today)

After provisions of the Delhi Agreement were endorsed by J&K’s Constituent Assembly, the 1954 Presidential Order (issued under Article 370) extended Indian citizenship to people of the state. Concurrently, Article 35-A was included in the Constitution of India, recognising the state assembly’s right to define the rights and privileges of permanent residents.

J&K’s Constitution defines a ‘permanent resident’ as an individual who was a state subject on May 14, 1954, or one who has been resident in the state for 10 years, and had “lawfully acquired immovable property in the state.”

Only the J&K Assembly has the power to alter this definition. The ongoing challenge to the constitutional validity of Article 35-A is premised on the fact that it was inserted in the Constitution through an executive order by then President, Rajendra Prasad, and not by Parliament.

Whatever be the arguments for or against, it is evident that the already alienated populace in the Valley could become estranged beyond retrieval. Tinkering with the constitutional provision will spell big trouble.

(Courtesy of Mail Today)

Last updated: August 06, 2018 | 12:44
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