Why Article 35-A Has To Go, And Go Now

Why Article 35-A Has To Go, And Go Now

by Hari Om Mahajan - Aug 11, 2017 05:34 PM +05:30 IST
Why Article 35-A  Has To Go, And Go Now Omar Abdullah and Mehbooba Mufti (Waseem Andrabi/Hindustan Times via Getty Images) 
  • The scourge of discrimination against Jammu residents at all levels is an ugly truth, and it’s time to bid goodbye to Articles 370 and 35-A.

The situation in Jammu is worsening with each passing moment. The patience of the residents of this very strategic province is also ending, and ending very fast. The nation can witness political explosions in Jammu anytime and these could be bigger than what it witnessed in the summer of 2008 in the wake of the Ghulam Nabi Azad-led Congress-Peoples Democratic Party (PDP) coalition government’s avoidable decision to snatch on July 1, 2008 the Baltal land in Kashmir from the Shri Amarnath Shrine Board (SASB). The land was lawfully transferred to it by the Jammu and Kashmir (J&K) High Court for the purpose of creating additional facilities for the Amarnath pilgrims.

The political explosions rocked Jammu for more than two months between 28 June and 31 August leading to the collapse of the Azad government and imposition of Governor’s rule in the state. Such was the situation that no Kashmiri leader, including the present Chief Minister Mehbooba Mufti and former J&K chief minister and National Conference (NC) patron Farooq Abdullah, could dare to visit Jammu for at least five months.

The situation as it prevails today in Jammu is more abnormal than what it was in 2008. What has aggravated the situation? There are many factors. One is the utter failure of the PDP-Bharatiya Janata Party (BJP) government to deport the illegal Rohingya-Bangladeshi immigrants, whose number runs into several thousands and who are found involved in undesirable activities. The people of Jammu believe that these foreigners have been settled in Jammu to change its Hindu-majority character and create a Kashmir-like situation. Their charge can’t be brushed aside as silly and preposterous. For, the J&K government has provided almost all facilities to them and placed at their disposal no less than 24 government teachers.

The other is the scourge of discrimination against Jammu at all levels and in all spheres, including in the vital service sector. The nature and magnitude of discrimination could be gauged from the fact that Kashmiri Muslims are grabbing almost 90 per cent of the gazetted posts being filled by the Kashmir-controlled J&K Public Service Commission (JKPSC) and Jammu is getting only crumbs, a paltry 10 per cent share, which is the lowest ever in 70 years. Worse still, the recruitment agencies are giving a differential and preferential treatment to the majority community (in this case the Muslims). There are instances where 100 per cent higher posts go to the Muslims. The latest instance is the appointment of four Muslims as general surgeons in the Jammu Medical College and hospital.

There are many other factors which have added to the anger of the people of Jammu province and their anger is directed both against the BJP-led Union government and the Jammu and Kashmir BJP, which is coalition a partner of the Mehbooba Mufti-led government. I skip all these factors and focus on the immediate provocation, which is grave by any standard. The case in point is the unity among all the Kashmiri leaders, “mainstream” and separatists included, against all the non-J&K residents and the marginalised women-folk and Hindu-Sikh refugees from Pakistan and the statements which Farooq Abdullah and his son Omar Abdullah (leader of opposition in J&K legislative assembly), Chief Minister Mehbooba Mufti and Congress leaders like Saif-ud-Din Soz have made. Chief Minister Mehbooba Mufti even crossed the red line on 9 August, when she went all the way from her official resident to the residence of Farooq Abdullah to discuss ways and means of protecting Article 35-A – a meeting which sprang a big surprise on all given the fact that the PDP and the NC were arch political rivals. This has changed the whole scenario in the state and added more fuel to the burning fire in Jammu.

They have in one voice threatened that any move to tinker with Article 35-A of the Indian Constitution would trigger “greater violence” in Kashmir. They insist that the people of Jammu and Ladakh have no other option but to fall in line. They have threatened that “there would be nobody in Kashmir to give his shoulder to the national tri-colour if Article 35-A was tinkered with” even slightly. Again, they have in one voice said that those demanding revocation of Article 35-A are those who want to change Kashmir’s demographic composition and erode the distinct identity of Kashmiri Muslims. (Kashmir is now 99.99 per cent Muslim.) It is just a spurious charge.

Article 35-A was applied to J&K in a hush, hush manner on 14 May 1954 through a presidential order. Nehru’s government didn’t invoke Article 368 to amend the Constitution. To be more precise, the Nehru government bypassed the Parliament and applied it to Jammu and Kashmir. It is not part of the main body of the Constitution; it finds mention only in an appendix.

What is Article 35-A all about? What does it provide for? Article 35-A declares all Indians persona-non-grata in Jammu and Kashmir. Under this atrocious Article, no Indian, not even the Union President and Prime Minister can buy an inch of land in state. In effect, Article 370 creates a high wall between the people of Jammu and Kashmir and the rest of Indians.

Article 35-A gives absolute, unbridled and extraordinary power to the Jammu and Kashmir government to grant or not to grant citizenship rights to any Indian or a group of Indians. In addition, no Indian can acquire education and get government scholarship in the state. Let me quote verbatim the text of Article 35-A to put things in perspective. It reads as under:

“Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:

(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or

(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects —

(i) employment under the State Government;

(ii) acquisition of immovable property in the State;

(iii) settlement in the State; or

(iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part."

It is this Article that has hurt all the non-J&K residents in the country in general and refugees from Pakistan and the whole lot of women-folk in the state in particular. There are almost 2 lakh Hindu-Sikh refugees from Pakistan living in Jammu since their migration from the adjoining Pakistan’s Sialkot area in 1947. They do not have the right to property, right to education, right to government jobs, right to vote and right to bank loan. They are Indian nationals, but not citizens of the state. They have been crying for justice since decades, but without any result.

As far as the women-folk in Jammu and Kashmir are concerned, their choice of marriage is restricted. If a daughter of state marries a non-permanent resident of the state, her children and husband can’t exercise any right in the state. Their status becomes similar to the status of refugees from Pakistan.

It needs to be underlined that before 24 September 2004, the revenue authorities in the state used to issue permanent resident certificates for the daughters of the state with a stamp of “valid till marriage” on them. This, despite the fact that the Full Bench of Jammu and Kashmir High Court had declared this obnoxious practice unconstitutional in 2002 and directed the Jammu and Kashmir government not to discriminate between the sons and daughters of the state while issuing “permanent resident certificates” to them.

It was this writer who approached the High Court in 2004 to get the order of the Full Bench implemented in letter and spirit. My PIL No. 1002/2004 & CMP No. 1089/2004 was considered by the two-judge High Court Bench. On 24 September 2004, the High Court Bench pronounced its judgement, which read: “In the meantime, respondents (State Government) are directed not to make any endorsement of ‘Valid Till Marriage’ on the State Subject Certificates issued to unmarried daughter of State Subjects”.

The Kashmiri leadership has to respect the sentiments of the people of Jammu, whose battle-cry and watchword all through has been complete integration into India and application of the Indian Constitution to the state in full, minus Articles 370 and 35-A, which keep the state aloof from the rest of the country. Any move on their part to impose its will on the unwilling people of Jammu and Ladakh would only lead to the disintegration of the state.

It is heartening to note that the BJP on August 10 said that “it is time to say goodbye to Article 370 and Article 35-A, as they have caused more damage to the nation and the people of the state and embittered inter-regional relations in Jammu and Kashmir”. Equally heartening is the stand of the Union government on the issue. Attorney General K K Venugopal is expected to explain before the Supreme Court the legal aspects of Article 35A, Home Ministry officials were quoted as saying on 10 August.

Hari Om Mahajan is former Dean, Faculty of Social Sciences, University of Jammu.
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