Article 370 and Art 35A are those twin topic which throw the state, it’s people and it’s politics in disarray as the special status of the State is considered as sine qua non in respect to the relationship with India. Any challenge to these is considered by some political parties and separatists as an attack on the “Special Status of Jammu and Kashmir” and an attempt to alter the status quo. Gossip market is ripe with facts, allegation and innuendos and Politicians from all spectrums have started issuing all sorts of intriguing statement. The indication that the constitutionality of Article 35A will be under scrutiny came from a Bench of Justices Dipak Misra and A.M. Khanwilkar while hearing a petition filed by Charu Wali Khanna, who has challenged the Article as well as Section 6 of the Jammu and Kashmir Constitution, which deal with the permanent residents’ status in J&K. Former Chief Minister And Leader of main Opposition Party National Conference, Omar Abdullah warned that tinkering with the said article will damage the relationship with India irreparably.
His father himself a former CM and now the MP Farooq Abdullah threatened to launch a mass agitation surpassing Amarnath Agitation after Amarnath Land Row in 2008. Mehbooba Mufti was not left behind who went several steps further and almost threatened union government and the people of India that all political parties, irrespective of their ideological differences will join together in protest and not a single person will be available even to raise national flag which we hold high today. It would not be wrong to say that Article35A has become a rallying point for all Kashmir centric political parties who have come together against any modification in Article35A. Most people of the state and even the shrewd Politicians have poor grasp over the same article and what it entails. Notions surrounding Article 35A have been based on rhetoric and misinformation and it is imperative to bring some clarity to the whole issue with alacrity.
A Presidential Order that enacted a fraud on the Constitution of India
On May 14, 1954, the President of India issued an order called the Constitution (Application to Jammu and Kashmir) Order 1954. It came into effect immediately and superseded the Constitution (Application to Jammu and Kashmir) Order 1950. Besides carrying out many modifications and changes, this presidential order ‘added’ a new “Article 35A” after Article 35 to the Constitution of India. Addition or deletion of an Article amounts to an amendment to the Constitution. And the Constitution can be amended only by the Parliament as per procedure clearly laid out in Article 368. But Article 35A was never presented before the Parliament of India. This effectively means, in this case, the President bypassed the amending procedure as laid out in the Constitution on India in order to add the new Article 35A. This also means that Article 368 of the Constitution, in its application to Jammu and Kashmir, also got amended! The President of India does not have legislative power, but in this case he appears to have performed the function of Parliament! The 1954 order states it is being issued “in exercise of powers conferred by clause (1) of Article 370 of the Constitution, with the concurrence of the Government of Jammu and Kashmir”.
The question, can President make an amendment to the constitution was raised in PuranlalLakhanpal and others Vs The President of India. Art370 (1) (d) says such of the other provisions of the Constitution shall apply in relation to J&K State subject to such exceptions and modifications as the President may by order specify but an order for adding a ‘new article’ in the constitution can’t be defended or taken refuge under such a provision ( Art 370 1-d ) since sub- clause 1d of Art 370 allows only modification of some existing constitutional provision and cannot be used for amending the COI to the extent of even adding a new article. An act of adding a new article by Presidential order like it has been done in case of Art 35A does not fall in the class of modifying an existing provision.Strangely enough, this ‘amendment’ to the Constitution has been concealed from general audit by not mentioning the same in the text of editions of the main Constitution. Most constitutional experts are completely unaware of this Article 35A and its implications.Trylocating Article 35A similarly in the Constitution. One would expect to find this Article between Article 35 and Article 36, right? NO! Article 35A does not appear between Article 35 and Article 36.
So, where is it?Another place to look for Article 35A would perhaps be the list of amendments to the Constitution. All amendments made to the Constitution of India, from the first one in 1951 till the latest, can be easily found in this list. But you won’t find Article 35A in this list either. Why? Is Article 35A not a new article added to the Constitution of India? Going by its nomenclature, it is. Adding an article amounts to amending the Constitution, right? Yes, it does. Then, why is the addition of Article 35A not listed among the amendments carried out in the Constitution? For your information, Article 35A appears in the Constitution as an appendix. How can an Article, which has been implemented on the ground as if it’s a part of the Constitution, be missing from the text of the Constitution?
WHAT IS ARTICLE 35A?
Ø Article 35A was an amendment in our Constitution via back door (Presidential order), without the involvement of India's Parliament.
Ø Article 35A is an example of the abuse of Article 370.
Ø Article 35A is a violation of the basic structure of our Constitution. It curbs certain basic rights enshrined in the very Preamble of the Constitution.
As a result of the implementation of Article 35A, lakhs of Indian citizens have been deprived of “JUSTICE, social, economic and political” and “EQUALITY of status and of opportunity”. It has also failed to “promote FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation”
WHAT ARE THE IMPLICATIONS of ARTICLE 35-A?
Ø This Article has denied certain basic rights to many communities living within Jammu-Kashmir for the past six decades. It has also taken away the rights of all Indians living outside Jammu-Kashmir from settling in the state of Jammu-Kashmir, an integral part of India. There are several victims of the draconian laws that emanate from Art35A. The plight of West Pakistan Refugees, Women, Valmikis and Gorkhas is pitiable.
After Partition of India Lakhs of people from West Pakistan migrated to India Side. Several thousand entered into state of Jammu and Kashmir. It was on the request of Sheikh Abdullah who promised early settlement of the refugees in the state that thousands of people stayed in the state and didn’t migrate elsewhere. These refugees have not been granted citizenship of the state and are mostly settled in the border areas which are prone to ceasefire violations. For last 70 years these people have suffered neglect, illiteracy, unemployment, crippling poverty and no ownership rights with respect to property. The refugee title given to them is wrong because they are internally displaced people as most of these people migrated from the area which was a part of erstwhile Jammu and Kashmir state and illegally occupied by Pakistan. But, they have been denied Permanent Resident Certificates which are the basic document for attaining higher education, jobs and property in the state. To quote Nehru, “Now they want to vary the old Maharaja’s laws, to liberalize it.” But, in the name of liberalization the Jammu and Kashmir state has made these laws even harsher. Maharajas law allowed non state subjects to become the state subjects if their services was needed for the public good. But, in the laws under Article 370 read with Article 35A even the President of India may be denied a place or land for official purpose. This is a breach of trust.
Yet another victim of these exploitative laws and state apathy is the betrayal that was done with Dalit Sweepers who were invited to the state by Chief Minister Bakshi Ghulam Mohammad in 1956. These 206 families came from Punjab to Jammu and Kashmir to help the state in major sanitation crisis after the local sweepers went on strike. The Valmikis were promised that they will be rehabilitated in the state as permanent resident and jobs will be provided to their sons and daughters in the government departments. On repeat requests of poor Valmiki community was granted a conditional Resident certificate, which specifically mentioned that it is valid for getting the job of a sweeper only. Now, generations after generations of Dalit sweeper community has been forced into the same occupation as they cannot attain other jobs and higher education. This is a clear violation of Article 15 and Article 16 of the constitution of India. Article 370 enforced by Artice 35A has turned the state of Jammu and Kashmir into a land of inequality and discrimination for all underprivileged and down trodden classes.
If this wasn’t enough the discriminatory laws stoop even lower. The Article 35A legitimized gender discrimination by depriving the daughters from inheriting properties of their families. A woman who married non-state subject man loses her right of inheriting the properties of her family. This law was challenged by a young woman Dr. Susheela Sawhney in the State of Jammu and Kashmir vs Dr. Susheela Sawhney. The Court deciding in favor of Dr Sawhney said that the Daughter of Permanent Resident of Jammu and Kashmir marrying a Non-Resident will not lose her interest in the property of her family. This judgement though gave a minor succor to the petitioner, Dr. Sawhneybut it didn’t improve the discrimination being meted out to her children and successive progeny. The judgement restored the rights of only Dr. Sawhney but the children of the woman will not acquire the citizenship of the state i.e the state subject and the right to acquire property through succession. The cycle of discrimination through the prejudicial laws come full circle.
Lastly, the Gorkhas are on the list of state sponsored discrimination. Gorkhas were the loyal subjects of the state and were mainstay of the Dogra Army. Gorkhaswho came from Nepal fought gallantly along side Maharaja’s Army and secured many prestigious honors. It is a shame that even they were didn’t escape the ire of the unfair laws and they are also subject to the same discriminations like their counterparts.
Ø Article 35(A) enables the State Assembly to define ‘permanent residents’ and to give them special rights and privileges, as well as to restrict the rights and privileges of all citizens of India who do not fit into this definition of ‘permanent resident’.
Ø As a consequence, no one except those defined as ‘permanent residents’ are entitled to property rights; employment in state government; participation in Panchayat, municipalities and legislative assembly elections; admission to government-run technical education institutions; scholarships and other social benefits.
35-A POSES MANY SERIOUS QUESTIONS:
F What exactly is the constitutional status of Article 35-A?
F How can the President of India step into the shoes of the Parliament and amend the basic structure of the Constitution without Parliament’s consent?
F This question can be asked in another way: Can the Prime Minister along with the Council of Ministers bypass Parliament and make whatever changes in the Constitution as they please? The President, after all, can issue an order only when told to do so by the Cabinet?
F Can democratic India allow any section of its population to be treated as second-rate citizens in any part of the country?
F Shouldn’t we, as responsible citizens of India, challenge what appears to be a clear cut case of circumventing constitutional procedures?
F What can be done to provide immediate relief to the lakhs of people who have suffered for decades because of this constitutional fraud?
It is imperative to debate the constitutional validity of this Presidential order in public domain. Modern day India certainly cannot allow such grievous mistakes of the past to continue to darken the future of its citizens. The communities that have been wronged deserve justice, urgently.
Moreover, processes and procedures have sanctity of their own, particularly when they concern something as serious as amendment of the Constitution. And if the processes and procedures have indeed been given a short shrift, as appears in this case, we should have the guts to question them.
Nefarious Designs of the State Government
(The Jammu and Kashmir Permanent Resident (Disqualification) Bill, 2004)
The state government was baffled by the High Court Decision in favor of Dr. Susheela Sawhney and tried to overturn the Court order by bringing a discriminatory law called the Jammu and Kashmir Permanent Resident (Disqualification) Bill, 2004. The Court in Susheela Sawhney Case had observed that domicile of a married woman is to be ascertained in the same way as the domicile of an independent person is ascertained. In the case of State of J&K v. DrSusheela Sawhneythe Full Bench of the Court after scrutinizing the judgment of the case Prakash v. Shahni laid down the correct law. In the final paragraph of the verdict, Justice V.K. Jhanji wrote: “Accordingly, I hold that the daughter of a permanent resident of the State of Jammu and Kashmir will not lose status as a permanent resident of the State of Jammu and Kashmir on her marriage with a person, who is not a permanent resident of the State of Jammu and Kashmir.”
After this, almost all the politicians of the present and past ruling class are saying that Maharaja Hari Singh had enacted the laws himself to debar the daughters of J&K residents to inherit the property of their parents in case they married outside the State. This is factually and legally wrong statement which is providing fuel to separatistelements.
With the spread of education and consequent awareness of their legal rights many married daughters from the majority Muslim community as well as the Hindu minority community started raising their voices against such a discriminatory treatment. A few of them came to the courts for seeking justice. Finally, after a long wait the Full Bench of the J&K High Court, consisting of three Judges, decided fourteen such writ petitions on 7-10-2002. It is held in this decision that there is no provision in the existing law dealing with the status of a female permanent resident who marries a non-permanent resident and that the State Legislature has powers under Section 8 of the J&K Constitution to make such a law.
Taking a clue from the abovesaid judgment the coalition Government presented “The J&K Permanent Residents (Disqualification) Bill, 2004” in the Jammu and Kashmir Assembly which would have retrospective effect nullifying the court judgement. This Bill was passed by the Legislative Assembly unanimously within six minutes. But, couldn’t pass through Legislative council as there were widespread protests against the government particularly in Jammu region.
The aims and objects of the legislation as set out in the preamble are
“a Bill to provide for disqualification from being a permanent resident of the State on marriage of a female permanent resident with a non-permanent resident”.
On becoming an Act, it has to come into force with effect from 7th October, 2002 (the date of delivery of the Full Court judgment). Section 2 of the Bill read as -
“Notwithstanding anything to the contrary obtained in any law, notification or judgment, decree or order of any court, a female permanent resident on her marriage with a person who is not a permanent resident shall with effect from the date of such marriage cease to be a permanent resident.”
Section 3 provides for interpretation:
A plain reading of these two sections of the proposed Act (Section 2 and Section 3) makes it clear that the Act shall hit the relevant provisions of the Jammu & Kashmir Constitution and the Constitution of India. The preamble of the State Constitution guarantees—
“justice, social, economic and political, equality of status and of opportunity and promotion among all the residents of the State, fraternity assuring the dignity of the individual and the unity of the nation”.
The female members of the State shall not get social, economic and political justice. They will be deprived of the right to inherit ancestral property; they shall lose government jobs and shall stand disqualified to receive higher education and future government jobs and contest elections etc. Their status and dignity shall also be a casualty. Section 22 of the State Constitution deals with the directive principles of State Policy and under clause (d) it ensures,
“the right to full equality in all social, educational, political and legal matters”.
Because of the protests this Bill couldn’t pass the legislative council and women right to acquire property of her family were secured. This showed the intention of the government which left no stone unturned to deny the fundamental rights of the women of the state and also reflected on the lengths to which they were willing to go to deny women and general public their basic rights.
Tales of Travesty
West-Pakistan Refugees
Those who migrated from West Pakistan to the Indian state of Jammu-Kashmir during Partition in 1947 have been living there since last 68 years. But over six decades later, they are still identified as ‘refugees’ and forced to live in ‘camps’. Even the third generation is tagged as ‘refugees’ and denied rights and privileges that should have been immediately granted to those who were forced to migrate from Pakistan.
Compare their situation with those who migrated from Pakistan to other parts of India such as Delhi, Mumbai, Surat etc. They were rehabilitated with a number of welfare measures such as allotment of houses, jobs etc. In fact, their integration into the mainstream was virtually seamless. Today, they are the rightful citizens of India, enjoying every right and privilege that the Constitution of India confers on all Indians.
After over six decades of living like bonded labour, these families want to be free of the ‘refugee’ tag.
It is high time the governments give them their rightful place in the democratic set-up and bestow every privilege enjoyed by all Indians by virtue of being citizens of India.
The discrimination:
Around 5,764 families consisting of 47,215 persons migrated from West Pakistan to different areas of Jammu Division.
No land was allotted to them by the State Government.
These refugees were able to occupy some land, which was later allowed to be retained by them without conferring upon them the title of land because of their non-permanent resident status. This means they can stay on this land, but cannot sell it or buy any other property.
West Pakistan Refugees (WPR) are mostly from the deprived sections and more than 80% of them belong to the Scheduled Castes. The J&K law for them means – they can be tillers, labourers, tenants but not land-owners and land-lords.
After six decades, their population has grown manifold. By some estimates, it’s about three lakh now. It’s obvious that the land they could retain six decades ago cannot be sufficient now.
Denied ‘permanent resident status’ in Jammu & Kashmir, WPRs cannot get a job in the State Government.
WPR families can't avail the benefits of various social welfare schemes launched by the State Government. No other benefits of any kind have been granted to them.
Their children are not entitled to scholarships and freeships available to PRC holders.
Members of WPR families cannot get admissions in any state-run professional colleges.
They are not even eligible to cast their vote for State Assembly elections.
They have no participation in local village panchayats and other self-governing bodies up to the district level.
This has brought them down to the level of second class citizens as they have no role in law-making at the state level.
When the authorities at the Central and State levels took a number of steps to rehabilitate even the nomadic tribes by allotting them lands on permanent ownership basis, nobody cared for these ‘refugees’ from West Pakistan!
Is it acceptable that victims of Partition, who entered Indian territory in the hope of succor, continue to be persecuted at the hands of Indian authorities?
Valmikis
The most depressing story is that of safaikaramcharis in Jammu-Kashmir.In 1957, around 200 Valmiki families were brought from Punjab to Jammu-Kashmir, following a cabinet decision, specifically to be employed as SafaiKaramcharis (sweepers).These families agreed to work in the state after being promised that the ‘permanent resident’ clause would be relaxed in their favour.After a lapse of five decades, family strength of each family has increased and number of employees has gone up. However, their plight is that they are ‘permanent residents’ of Jammu-Kashmir only to the extent of being SafaiKaramcharis!Their children have studied up to graduation level but are not eligible to apply for government jobs.Their children cannot get admission to government-run professional institutes.
The educated youth from these Valmiki families are only eligible to be appointed as safaikaramcharis. The educated Safai-Karamcharis already working in Jammu Municipality now qualify for further promotions. But as they can only be employed as sweepers, there is no hope.These Safai-Karamcharis can vote for Lok Sabha elections, but not for State Assembly or municipality elections.The colony that was allotted to SafaiKaramcharis to live in (Valmiki Colony, Gandhi Nagar, Jammu) has not been regularized till date.
Is this not the worst kind of slavery practiced in the modern world?
The Permanent Resident Laws, Article 35A and Constitutional Provisions are under discussion after the petitions have been filed in Supreme Court of India. The Constitutional validity of Article 35A is being verified by Apex Court and it is pertinent to wait for the Court’s decision. But, so far it is clear that the state subject laws have been used as a political tool of oppression by successive Kashmir centric political parties for their own benefit at the cost of the basic rights of the people who have been discriminated against since the last 70 years.
Writer is a law student of Jammu University and can be reached at [email protected]
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