With the Supreme Court indicating that the constitutionality of Article 35A would be examined by a constitution bench of five judges, it provides an opportunity to approach this issue, as also Article 370, from a legal perspective, removed from the political and at times passionate discussion which have been the norm in this regard.
Any discussion about Article 35A is incomplete without going back in time by almost a century to 1927 when Hari Singh, then ruler of the Jammu and Kashmir passed an order which provided that state subjects would be preferred to outsiders for employment in government services. It provided for three classes of state subjects depending on the basis of certain parameters: year of birth, or being permanent residents, or having acquired land under a
rayatnama of the state. By virtue of this order, outsiders were not allowed to purchase land in the state or apply for state government employment. This was followed by another order issued in 1932 which prescribed certain criteria for foreign nationals to be eligible as state subjects on fulfilling of certain conditions like acquiring land under an
ijazatnama and on obtaining a
rayatnama after ten years' continuous residence in the Jammu and Kashmir state. Simply put, these provisions left some scope for non-state subjects or outsiders to acquire land and be treated as state subjects.
However, what is interesting to note that Justice AS Anand in his book
"The Constitution of Jammu & Kashmir" has referred to certain documents/writings which indicates that these orders apparently benefited the people of the Jammu region rather than those in Kashmir, leading to disenchantment in the Valley, but strangely, Article 35A, which is derived from these orders, is today being supported by those who were apparently discriminated against. And here lies the catch in the entire episode, as any discussion delving into the intricacies of Article 35A is stonewalled by raising the banner of Article 370.
The state of Jammu and Kashmir became part of the Indian Union in October, 1947 by way of an agreement of accession. What needs to be emphasised is that this agreement was no different from the ones signed by the other 561 princely states, meaning that the accession was complete in all respects and irreversible. Article 370 was brought into the Constitution given the circumstances prevailing in those days, but unlike other provisions of the Constitution, this was kept in Chapter 21 dealing with "Temporary, Transitional & Special" provisions, making it clear that Article 370 was only a temporary and transitional provision. Though the proponents of the continuance of Article 370 over-emphasize the "Special" aspect, the fact remains that the Constituent Assembly was clear that it will be a "Temporary" and "Transitional" provision. Under this Article, the President of India is authorized to extend provisions of the Constitution to Jammu and Kashmir with modification or alteration by way of a Presidential Order in consultation with the state government.
To this end, the first Presidential order was issued in the year 1950, extending applicability of certain provisions of our Constitution to the state. The second was issued in 1954 and it was through this order that Article 35A, a new provision, was added to the Constitution after Article 35. In other words, a Presidential Order brought about an amendment to the Constitution without following the elaborate procedure laid down in Article 368 and Article 35A got a backdoor entry to our Constitution. What is even more surprising is that you will not find this Article after Article 35 in any of the bare acts of the Constitution, as is required when a Constitutional amendment is brought about. For example, when "Right to Education" was brought in, it was given place below Article 21 as Article 21A, but in this case, the text of Article 35A is not to be found in the main body of the Constitution but in the Appendix! What is worrisome is that a provision like Article 35A has received little or no academic attention until recently.
Article 35 forms part of the "Fundamental Rights" chapter, and Article 35 A having been added after this provision
ipso facto becomes part of the same chapter, but ironically, in essence and substance, it curtails the fundamental rights of a vast number of citizens of our country. In a nutshell, Article 35A is nothing but a restricted version of the 1927 & 1932 Orders empowering the state legislature to determine who are permanent residents of the state and confer on them various special rights and privileges while imposing restrictions on others (who are not permanent residents) in respect of employment, the acquisition of immovable property, settlement in the state, right to scholarships and such other forms of aid as will be determined by it.
The provisions of Article 35A are also contained in Articles 6 to 10 of the Jammu and Kashmir Constitution, even though by virtue of Article 5 of the Constitution of India, all residents of Jammu and Kashmir are citizens of India enjoined with various rights but not
vice versa. Consequently, a situation has arisen when no one outside of Jammu and Kashmir can (i) purchase land there, (ii) get benefit of scholarship and admission to educational institutions of the state, (iii) apply for government employment in the state. It is not just limited to people outside of Jammu and Kashmir not satisfying the permanent resident criteria; even women marrying out of the state lose out on various rights and become "non-permanent" which makes them ineligible to buy land in their home state or benefit from various welfare legislations dealing with their right to property. After a protracted legal battle, in 2002, a full bench of the Jammu and Kashmir High Court held that even after marriage to outsiders, such women will not lose out on their permanent resident status; but efforts were made by the then ruling dispensation to nullify the same though a bill that was passed in a record six minutes! After much protest from the BJP, then in the opposition, as also its then coalition partner, the Congress, the bill was withdrawn. Though the 2002 judgment gives some hope women who have married outside the state, their children still do not have any rights as they are not included in the permanent resident category. In fact, one of the petitions pending before the Supreme Court highlights this aspect of discrimination and it is time that this issue is settled once and for all.
In recent years, we have been witness to outrage against the violation of human and constitutional rights of deprived sections of society all across the country. However, the plight of about 200 Valmiki families who were brought from Punjab to Jammu and Kashmir in 1957 to be employed as
Safai Karamcharis has received no attention from the otherwise voluble activists, or for that matter, the media. These families were promised "permanent resident status", but 60 years on, their status is still in limbo. Even though many members of these families have the educational qualifications required to apply for government employment, they are not entitled to do so except as
Safai Karamcahris. They can vote for the Lok Sabha elections but not for local bodies or the Jammu and Kashmir legislature. Above all, the colony that was allotted to them has still not been regularised after all these years.
Another glaring instance of discrimination pertains to the refugees from West Pakistan who migrated to Jammu and Kashmir after partition. All those who came from Pakistan during partition and settled in other places of the country were granted all the rights of a citizen of the country including the right to acquire immovable property, employment, etc. It is a travesty that those who chose to settle in Jammu and Kashmir are still treated as refugees. 80% of these people belong to Scheduled Castes but they do not enjoy any benefit which is otherwise available to similarly placed persons elsewhere in the country. A population of around 3,00,000 is excluded from social welfare schemes, scholarships, admission to schools run by the state government on account of the protective shield that the state of Jammu and Kashmir enjoys on account of Article 35A.
These are only few of the instances where Article 35A has led to discrimination, violating the principles of human rights and various provisions of the constitution, forcing lakhs of people in the state to lead the lives of second-class citizens.
Another dimension that needs to be analysed is that the economic potential of the state has not been harnessed as Article 35A acts as a deterrent to investment from outside - not many will be interested in setting up shop in Jammu and Kashmir unless they are provided with land-owning rights.
Resultantly, it is the people of the state who have been deprived of the benefits that an open economy has brought about in other parts of the country. So, rather than aiding the people of Jammu and Kashmir, these provisions have, over the years, impeded the growth of the state which has immense touristic and other potentials.
This situation has been exploited by separatists who find it easy to rope in unemployed youth in the name of protecting the Kashmiri identity and the state is always in a state of turmoil aided and abetted by Pakistan. No wonder that every time these Articles are spoken about, all political parties except for the BJP raise the banner of revolt and predict doomsday for the country if these are repealed. Currently, we are witnessing the same scenario where the NC, PDP, CPM, etc. have ganged up, ostensibly to build pressure against any court intervention.
Owing to the provisions of Article 370, the Jammu and Kashmir High Court in 2015 went to the extent of proclaiming that the state has sovereign powers, independent of India! It is a different matter that the Supreme Court shot down such a finding recording, in no uncertain terms, that the High Court had gone astray. But the sad reality on the ground is that Articles 370 & 35A have fostered alienation in the state which has been exploited by various vested interests. To end this, Article 35A should be approached dispassionately so that the Supreme Court can take a legal view of the entire issue rather than creating any impediment as is being done by a few who will be denuded of all their powers to dictate anything and everything that happens in Jammu and Kashmir.
(Sandeep Mahapatra is a practising lawyer in Delhi and contributes regularly on issues of law, politics, culture and governance in print and electronic media. He was also president, JNU Students' Union in 2000.)Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.