Article 35A- The debate surrounding it

Topic-General Studies Paper-2; Indian Polity & Constitution

Article 35A was not part of the Constitution as it was adopted in 1949. It was added later by a Presidential Order in 1954. This Order was issued under Article 370 of the Indian Constitution, which grants special autonomy to Jammu and Kashmir.

Article 35A empowers the state legislature of Jammu and Kashmir to define ‘permanent residents’ of the state. These residents are then eligible for special rights and privileges which the legislature can provide.

Further, the laws made under Article 35A cannot be challenged on the ground that they affect the Fundamental Rights of other Indian citizens.The right of the state legislature is not, however, unlimited. They can give these special rights and privileges only in the following four categories:

  1. Employment under the state government;
  2. Acquisition of immovable property in the state;
  3. Settlement in the state; or
  4. Right to scholarships and such other forms of aid as the state government may provide

Article 370, 35A and order 1954 are an unwanted burden which the region has carried with itself since the time of its inception. While the provisions under these articles were meant at safeguarding the ‘cultural integrity’ of the entire state of Jammu and Kashmir, in reality, these have only worked to erode the cultural integrity of the state’s minorities.

Under article 35A, the state government was allowed to define the term ‘permanent residents’ such that no person from outside could purchase land within the state. The effects of which were as follows:

  1. This effectively created a barrier between Jammu and Kashmir and the rest of the country
  2.  The governments, both at the centre and the state, did nothing to do away with the barriers imposed within the state.
  3.  In the last few decades, the state has seen a huge migration from the north to the south, such that the Jammu region is flooded with refugees from the valley.
  4.  While there is a large influx of population migrating down south, the reverse migration is a near absent phenomenon.
  5.  This discrimination becomes more glaring when one realises that while Jammu region has been highly accommodative of the refugees pouring in its cities, the valley has been reluctant to grant pieces of land to Kashmiri Pandits, retired soldiers.

Article 370 and 35A were incorporated to prevent the much feared ‘Hindu cultural imperialism’ by New Delhi on Kashmir, but they do absolutely nothing to prevent a similar cultural and linguistic imperialism which is unfolding within the boundaries of the state.

  • The state elites are guilty of promoting majoritarianism by providing social, financial and political support to a particular language and way of life.
  • The moves by every valley-based government have been aimed at undermining the cultural and linguistic identities of the state’s minorities including the Dogras, the Pandits, the Gujjar-Bakerwals, the Ladakhis and the Sikhs.

 SIGNIFICANCE OF THIS ARTICLE TO J&K:

  1. Permanent residents law prohibits non-permanent residents from permanent settlement in the state, acquiring immovable property, govt jobs, scholarships
  2. It was also interpreted as discriminatory against J&K women. It disqualified them from their state subject rights if they married non-permanent residents. But, in a landmark judgment in October 2002, J&K high court held that women married to non-permanent residents will not lose their rights. The children of such women don’t have succession rights.

THE DEBATE SURROUNDING ARTICLE 35A:

  1. An NGO, We the Citizens, challenged 35A in SUPREME COURT in 2014 on grounds that it was not added to the Constitution through amendment under Article 368. It was never presented before Parliament, and came into effect immediately, the group argued. 
  2.  In another case in Supreme Court, two Kashmiri women argued that the state’s laws, flowing from 35A, had disenfranchised their children.

IN CASE THE ARTICLE IS TINKERED WITH WHAT IS THE FEAR IN MIND OF POLITICAL PARTIES AND SEPARATISTS?

  1. It would lead to further erosion of J&K’s autonomy and trigger demographic change in Muslim majority valley.
  2. Political parties say Kashmir resolution lies in greater autonomy; separatists fan paranoia against possibility of Hindus ‘flooding’ the valley. However, in the last 70 years, demography of Kashmir Valley has remained unchanged even as Hindu majority in Jammu and Buddhists in Ladakh have rights to buy property and settle in the Valley.

CONCLUSION

Kashmir must be freed from the clutches of Article-35A to make room for a constructive solution, which maximize peace, progress and prosperity for all.It will need new leaders with a liberating vision to inject fresh development within the state.

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