What Article 35A means for Jammu and Kashmir

Source : SIFY
By : Varun Sukumar
Last Updated: Tue, Oct 31, 2017 10:07 hrs

Former Jammu & Kashmir Chief Minister said he would be proud to be labeled ‘anti national’ in his pursuit of seeking autonomy for Jammu and Kashmir. This comes on the heels of former Finance Minister P. Chidambaram calling for more autonomy for the state. On Monday, the Supreme Court was scheduled to hear petitions challenging the constitutional validity of the politically contentious Article 35A. This has been deferred by 8 weeks.

Article 35A is a constitutional provision that allows the Jammu-Kashmir assembly to define permanent residents of the state. The Jammu & Kashmir constitution, a permanent resident is defined as “a person who was a state subject on May 14, 1954, or who has been residing in the state for a period of 10 years, and has lawfully acquired immovable property in the state”.

The provision, introduced in 1954 by a Presidential order, was done so with the aim of safeguarding the rights and guarantees the identity of the people of Jammu & Kashmir. Only the J&K assembly can change the definition through a law ratified by a two-thirds majority.

The apex court will hear petitions that demand the scrapping the provision. If the Supreme Court clears the way for repealing article 35A, separatist leaders Syed Ali Shah Geelani, Mirwaiz Umar Farooq and Mohammad Yasin Malik issued a joint statement urging the people of Kashmir to launch a mass agitation.

Political analyst Amulya Ganguli, in a column for the Millennium Post writes on how the government has acted in its Kashmir stance –

“The government's latest initiative on Kashmir has come at the end of a similar tortuous route when it tried everything from a "muscular approach", as the Congress has said, to letting the sword of abrogating Article 35A of the Constitution hang over the state's head”.

“Article 35A underlines the state's special status by preventing non-locals from buying or owning property in Kashmir. But now, the government wants to start a dialogue with its critics, although, till recently, it appeared that the use of force was its most preferred option”.

Despite Home Minister Rajnath Singh’s comments in September about how the government will not go against the wishes of the people of Jammu and Kashmir, the separatist leadership wasn’t convinced and vowed to “safeguard the integrity and special status of the state at any cost.” In September, the Home Minister’s comments were met with support from Omar Abdullah –

The RSS Chief Mohan Bhagwat earlier this month came out against article 35A calling it unconstitutional saying it violates the principle of guaranteeing equality to all citizens of India, irrespective of their caste, creed or religion.

Retired Major General Harsha Kakar in a column for the Daily O, lays out why article 35A is not good for Kashmir –

“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”.

“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”.

“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”.

Earlier in September, a team led by former union minister and senior BJP leader Yashwant Sinha found that there was a growing sense of alienation of Kashmiris due to the petitions challenging the validity of article 35-A. The ‘Concerned Citizens Group’ made up of 25 people were asked by Kashmiri representatives as to why the state government was left to defend 35A and why there was no obligation on part of the central government to defend the constitution.

The two main parties in Jammu & Kashmir; PDP (People’s Democratic Party) and NC (National Conference) do not want the provision to be tampered with. Chief Minister Mehbooba Mufti does not want to see 35A removed stating ‘there won’t be anyone left to carry the Tricolour in Kashmir’.

Raghav Pandey, a teacher at National Law University, Mumbai and a research fellow at Department of Humanities and Social Sciences, IIT Bombay, in a column for Firstpost writes on how the law was originally enacted for political appeasement through an illegal process –

“The blatant illegality in the process of enactment of Article 35A is for everyone to see. The provisions of Article 35A give special rights to the "permanent residents" of the state. It empowers the state legislature to define permanent residents and then give them special treatment, privileges and rights”.

“The implementation of these provisions therefore leads to creation of two classes of citizens in the Union of India. One class has special access in Jammu and Kashmir and the other doesn't. This is something which goes against Article 14 of the Constitution, which says that the state shall not discriminate amongst its citizens on the basis of their gender, caste, creed, religion or the place of birth”.

“If Article 35A is struck down, there will be more legal parity between a citizen of India in Jammu and Kashmir and a citizen of India in any other state. It is high time that the Supreme Court takes cognisance of this matter. The enactment in the first place was nothing but political appeasement and opportunism”.

Essentially, the controversial provision has 2 components that need to be looked at by the Supreme Court. The first being the manner in which the provision itself was added to the Indian constitution and the second is if it provides any basis for discrimination.

More columns by Varun Sukumar