Why Article 35A isn't good for Kashmir

Legally, the Article can be questioned as it denies residents their basic rights under the Constitution.

 |  5-minute read |   15-08-2017
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In recent times, there has been an intense debate on the legality of Article 35A of the Constitution, specifically as it concerns Jammu and Kashmir. This Article empowers the state legislature to define “permanent residents” of the state, their special rights and privileges. It was added to the Constitution through a presidential order of 1954 with the concurrence of the state government of the day.

Special status

Article 370, on the other hand, guarantees special status to the state, restricting the Union government’s power to only three subjects — defence, foreign affairs and communication. The Delhi agreement between Jawaharlal Nehru and Sheik Abdullah in 1952 led to several additional provisions of the Constitution being extended to the state. This was done via a presidential order of 1954.

Article 35A was inserted then. Article 35A provides the right to purchase and own property, seek government jobs, aid, college admissions and scholarships in the state. Those who emigrated from the state to Pakistan during Partition are considered state subjects for two generations, but those who migrated from other than POK and settled in J&K, post Partition, are ineligible.

Article 35A is now being challenged in the Supreme Court. There are differences in views, both within the state and between political parties. The BJP had mentioned removal of the Article in its election manifesto and believes it has outlived its utility and the state should be merged with the nation, akin to other states. Its coalition partner, the PDP, and the National Conference (NC), both Valleybased political parties, are averse to its removal.

35a_081517054627.jpgPhoto: Tehelka

CM Mehbooba Mufti stated that if the status of J&K is tampered with, there would be no one to hold the Indian flag in the state, while Farooq Abdullah warned of mass protests. The Valley parties are against this proposal solely because they have been propagating that such a step would lead to change of demography in the Valley. J&K has three distinct parts — Jammu, Kashmir and Ladakh. There are no major objections to the Article’s abrogation in Jammu; in fact, the region desires its removal, as recent forum discussions have indicated, while Ladakh seeks a union territory status. However, the Valley remains solely averse.

It is unlikely that the Article can be considered for removal in one part of the state, while it remains in the others. The Article has been discriminatory among its own population, hence has come under questioning. A resident woman marrying outside the state is no longer considered a permanent resident, thus she and her children lose their status. The same is not applicable to male members, who may marry outside the state. Further, residents of the state since Independence, having migrated from Pakistan, are non-residents, while those who emigrated to Pakistan are.

Legally, the Article can be questioned as it denies residents their basic rights under the Constitution. The Articles of the Constitution which are violated are Article 14 concerning equality, Article 15 concerning discrimination on basis of place of birth, Article 16 dealing with equality of opportunity in matters of public employment and reservations and Article 19, which is right to free speech and right of life and liberty.

Demography

Article 370 has a different connotation. The J&K High Court in October 2015 had ruled that Article 370 is “permanent, beyond amendment, repeal or abrogation”. In a subsequent appeal, the Supreme Court stated that it is not permanent and Parliament can take a call on scrapping it. Hence, the battle has now shifted to Article 35A, which could be a precursor to Article 370 Over the years, Kashmiris have been made to believe that scrapping of Article 35A would change the demography of the region.

This could never be further from the truth. Residents of the entire state possess the power to purchase property and settle anywhere, within the state. There has been no movement of population from either Jammu or Ladakh towards the Valley and thus no demographic change has occurred in the region in the last 70 years. The property of Kashmiris who migrated post the ethnic cleansing was bought by local Muslims, not residents of Jammu or Ladakh.

Second, why should Valley-based political parties possess the prerogative to take decisions on behalf of the state? Their logic that the demography of the Valley would change is skewed, as they represent the state and not only the Valley. The Valley is much smaller when compared to Jammu and Ladakh, both in terms of area and population, hence it should not be permitted to hold the rest of the state to ransom.

Support base

The reality is that the Valley-based parties are afraid of losing their support base, because for years they have drilled into the population the thought of demographic change, hence they cannot back down now, though evidence points to the opposite. In addition, there is a latent fear that the BJP would soon become a force in the Valley, eroding their power.

If the state is required to take a legal stand on the issue, then it should consult representatives of Jammu and Ladakh also. They are unwilling because Jammu is dominated by the BJP, whose views are clear and Ladakh by the Congress. Hence, in case political consensus is not forthcoming, then the next democratic step would be to conduct a referendum across the state. Both PDP and NC are hesitant against this step, knowing they would lose.

Thus, they are willing to support violent protests in the Valley, as it is the only part of the state where locals have been brainwashed. In case the Centre does seek to bring about a change, it needs to engage the population, commence debate on the advantages and disadvantages of the Article in vernacular media and college forums, creating awareness to override the misconstrued campaign of the Valley-based political parties.

It should not let only one voice, opposing the Article, flow from the Valley. Saner thoughts must prevail and complete state views must be considered, which are strongly for its abrogation.

Also read: Why India has learnt nothing about Kashmir in 70 years

Writer

Harsha Kakar Harsha Kakar @kakar_harsha

The writer is a retired Major-General of the Indian Army and author of the book, Harsha Kakar writes.

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