Article 35A – A Black Mark on our Democracy

Recently, there was a lot of hue & cry in the left-liberal camp over the Supreme Court hearing a plea filed by NGO ‘We the Citizens’ in 2014 challenging the constitutional validity of Article 35A, an amendment to the constitution introduced via a Presidential order in 1954. As usual, the mainstream media has failed to educate people on the true implications of Article 35A and why it is such a blot on any self-respecting democracy.

The separatists in Kashmir have predictably brought the valley to a standstill over the issue. The state Government has asked for the hearing to be deferred (yes, the plea finally coming up in front of the SC bench after 4 years is still far too quick for our secular state) in view of upcoming local body elections – and SC has duly obliged by saying it will hear the petition from 27 August. The blue-eyed boy of our civil services & 2010-batch IAS topper, Shah Faesal has also issued a veiled threat to SC to not meddle with 35A.

With so much misinformation and half-truths floating around, it is an apt time to remember the documentary ‘Article35A’ which was released last year in New Delhi, and which shows why this Article is such an abomination –

It is to be noted that any change in the constitution is possible only by enacting a constitutional amendment bill. The detailed procedure for this process has been enlisted in the constitution itself under Article 368. The process initiates with the introduction of a bill in either house of parliament. The Bill must then be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.

If the President, in case of any emergency, promulgates an ordinance amending the Constitution, then the same has to be ratified by Parliament else it will automatically become null and void after six months from the date of promulgation.

But in case of 35A, the constitutional procedure was not followed. In 1954, it was inserted in the Constitution merely through a presidential order. To overcome any opposition against this unconstitutional article the constitutional procedure was bypassed. In a number of books on Bharat’s constitution there is no information or reference of article 35A as this article was placed in the appendix only and is not even listed in the list of amendments.

Article 35A enables the J&K State Assembly to define ‘permanent residents’ and to give them special rights and privileges. 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.

This black law violates several fundamental as well as legal rights of various communities residing in the state of Jammu & Kashmir. In a democratic country where the constitution gives equal rights to each of its citizens, it is farcical that such a law exists which deprives even sections of residents in J&K of their basic rights.

In Jammu & Kashmir, there are four communities severally affected by article 35A, namely, Valmiki community, West Pakistani Refugees, Gorkhas and the women of J&K.

The Valmiki community, which has been residing there since 1957, was initially promised full citizenship by the J&K government but have since been deprived of PRC (Permanent Residence Certificate) which is mandatory to receive government benefits for education or employment. Even the educated youth from these Valmiki families are only eligible to be appointed as safai karamcharis (sweepers).

Similarly, 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 their 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. It is estimated that 80% of these refugees are from the Scheduled Castes and they total around 3 lakh now.

Gorkhas settled in Jammu Kashmir in the 18th & 19th century and a majority of them were soldiers and families that fought in the ranks of Maharaja Ranjit Singh of Punjab. Their population numbers around one lakh and is spread across JK, including Kashmir Valley. There are innumerable instances of Gorkhas who have made supreme sacrifices for the integrity of Bharat and the safety of J&K. Unfortunately, they have never got the rights they deserve in independent and democratic Bharat.

35A is a blatantly gender discriminatory law as well. If a woman from J&K marries a man from any other state, she loses her rights and her children become ineligible for PRC and inheriting property.

Many knowledgable commentators have said that 35A also acts as a big barrier to development in the state as it stymies industrialisation or private participation in sectors like education, as no non-state investor or entrepreneur can own property in J&K. So 35A is also responsible for stoking alienation and pushing the youth of J&K towards terror.

Speaking on the occasion of the release of documentary film ‘Article35A’ , the former Governor of Jammu and Kashmir (J&K) Shri Jagmohan said, “They have created a land without justice. The provisions introduced through the Constitutional Order of 1954 were done intentionally. It’s not as if the leaders, the parliamentarians didn’t know what they were doing…This law must go.

It is sad to see that Kashmiris are free to roam around anywhere in Bharat, own properties, run shops, sell goods, study and work in Bharat, but when it comes to giving equal rights to underprivileged residents of Jammu and Kashmir or their fellow citizens in rest of Bharat, they are loathe to do so.

Sources:

http://www.jammukashmirnow.com/Encyc/2016/12/2/-Article-35-A

http://jammukashmirnow.com/Encyc/2017/8/31/Documentary-on-35A

http://jkstudycentre.org//Encyc/2016/5/5/Article05052016.aspx

http://www.dailyexcelsior.com/article-35a-while-women-face-discrimination-development-is-marred-too/

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