The Supreme Court adjourned the hearing on the pleas challenging the Constitutional validity of Article 35A, that pertains to the citizenship rights in the State of Jammu and Kashmir.
The reason for the adjournment of this crucial hearing was that Justice DY Chandrachud, one of three judges in the bench, was not present. The CJI Dipak Misra informed that the petitions on Article 35 A will now be heard in week commencing August 27.
The debate over Article 35A of the Constitution, which empowers the Jammu and Kashmir legislature to define “permanent residents” of the state and provide special rights and privileges to them, has stirred a major political storm.
Call for a two day bandh in J&K was announced by the mainstream political parties and separatists, who have warned of serious repercussions in case of any tinkering with Article 35A.
Background to the Issue
0n 15 Aug 1947, India and Pakistan were granted independence from the British rule to exist as independent nations. The State of J&K had opted to neither join India or Pakistan, but to exist as an independent entity.
On 20 October 1947, Azad Kashmir Forces, supported by Pakistan army attacked the frontiers of the state and marched towards Srinagar garnering more local support along the way, as the state, at that time had 75% Muslim population.
Maharaja Hari Singh, the then ruler of J&K, approached India for assistance. India dispatched its troops to halt the advance of the Azad Kashmir Forces, with the condition that the state of J&K would accede to India.
Hence, an ‘Instrument of Accession’ was signed between the Indian PM, Pandit JL Nehru and Maharaja Hari Singh on 26 October 1947.
Sheikh Abdullah was appointed as the head of the emergency administration and he endorsed the accession to India as an ad hoc arrangement, which would ultimately be decided by taking the “will of the people of J&K” into consideration by holding a plebiscite in due course.
In order to keep the local population humoured and to ensure that the “will of the people of J&K” remained in India’s favour, on 17 October 1949, Indian Constituent Assembly adopted Article 370 of the Constitution ensuring special status and internal autonomy to Jammu and Kashmir.
Article 370 gave the solitary State of Jammu & Kashmir the right to have a separate Constitution and separate flag, but nowhere does it say which category of Indians will enjoy all citizenship rights in Jammu & Kashmir and which section/sections will not.
Kashmiri-dominated Jammu & Kashmir Constituent-cum-Legislative Assembly was formed in 1951and Article 370 formally became operative on 17 November 1952.
Later, incorporating the spirit of Article 370, the Jammu & Kashmir Constitution was implemented on January 26, 1957.
Article 1 of the Indian Constitution binds the State of J&K and its territory to the Indian Union, simultaneously, Article 370 grants it a special status and hence, all provisions of the Constitution of India are not applicable to the State of J&K.
Incorporation of Article 35A
The discussions for furthering the relationship between the State of J&K and the Indian Union continued and was eventually formalized and reduced to writing in the form of the Delhi Agreement in 1952. The same was signed between PM Jawaharlal Nehru and the Prime Minister of Jammu and Kashmir Sheikh Abdullah.
It was decided that “Indian citizenship would be extended to all the residents of the State, but the State legislature shall have the power to define and regulate the rights and privileges of the permanent residents of the State, especially in regard to the acquisition of immovable property, appointments to services and such like matters.
Consequently, Article 35 of the Constitution of India was amended to 35A and was incorporated into the Indian Constitution through a Presidential Order on May 14, 1954, bypassing the Parliament.
Article 35A has created more of a communal discrimination by denying rights to its migrant citizens, e.g. they do not have the right to obtain jobs under the State Government, no right to acquire immovable property anywhere in the state, no right to vote in the Assembly and local-bodies’ elections, no right to higher and technical education, no right to bank loans, and so on.
A think tank organisation, based out of Delhi and said to be close to RSS, called the ‘Jammu and Kashmir Study Centre’ (JKSC) had challenged Article 35A in the Supreme Court on 16 -17 July 2015.
Approximately, 1.5 lakh Hindu’s, mostly dalits, had migrated from West Pakistan, as an aftermath of communal partition in August 1947. These migrants, even after having stayed in the State of J&K for over 70 years, have been denied citizenship rights by the State.
Provisions of Article 35A for Defining J& K Permanent Residency
(I) “Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954:
(a) He was a state subject, or
(b) Having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to this date” and
(II) “any person who, before the fourteenth day of May, 1954 was a State Subject and who, having migratedafter the first day of March, 1947, to the territory, now included in Pakistan, returns to state under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State (basically meaning that Muslim migrants from Pakistan who had moved to India between March 1947 and May1954 were given citizenship rights).
However, “no persons who had crossed over to the state of J&K before March 1947 will be considered eligible for citizenship rights”. The prime motive of this legislation was to deny citizenship rights to Hindu migrants from West Pakistan, who had migrated to the State in the wake of hostile environment that existed during partition.
Major Objections Pertaining to the Provisions of Article 35A
Article 35A was added to the Constitution through a Presidential Order and not by following the procedure prescribed for amendment of the Constitution of India under Article 368, where this Constitutional amendment can only be made through a Parliamentary debate and voting. Hence, its legality is being questioned.
The classification of Permanent Resident Certificate created under the provisions of Article 35A suffers from the violation of Article 14, i.e. “Equality before Law”. Hence, the non-resident Indian citizens cannot have the rights and privileges, same as permanent residents of Jammu and Kashmir.
Article 35A violates the rights of women to ‘marry a man of their choice’ by not giving the heirs any right to property or given a Permanent Resident Certificate, if the woman marries a man who is not a permanent resident.
Safai Karamcharis (scavengers) who were brought to the State in 1957 were promised that they would be given Permanent Resident Certificates on the condition that they and their future generations continued to perform their scavenger duties. However, even after six decades of service in the State, their children are Safai-Karmacharis and they have been denied the right to quit scavenging and choose any other profession.
The industrial sector & private sector is suffering on account of no domestic investments coming in from other parts of India or businesses can be setup in the State due to the property ownership restrictions.
Children of non-state subjects do not get admission to State colleges.
The refugees from West Pakistan who have been staying in J&K for 70 years are unable to enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu and Kashmir.
Lastly, it gives a free hand to the State government and politicians to discriminate between citizens of India, on an unfair basis and give preferential treatment to the State subjects.
Points in Support of Article 35A
It is being argued that similar provisions have been provided for other states, like Himachal and North Eastern states. However, no objections are being raised over there. Moreover, Article 370 was enacted on 26 November 1949 as part of the Constitution of India by the Constituent Assembly of India which was a sovereign body, and, Article 35A “flows inexorably” from it.
It is a known fact that the special status granted to the State under Article 370 has been progressively watered down over the years by various Centre governments. The provisions of Article 35A pertaining tothe rights of permanent settlement are being regarded by the Kashmiris as the only remaining piece of any meaningful autonomy.
Further, Article 35A protects the demographic status of the Jammu and Kashmir state in its prescribed constitutional form. Any move to abrogate Article 35A would open the gates for a demographic transformation of the valley, amounting to breaking a promise made to the people of J&K at the time of accession of the State to the Indian Union.
Article 35(A) of the Constitution of India, which has been applied to the State of Jammu and Kashmir, not only recognizes but clarifies the already existing constitutional and legal position and does not extend something new to state of Jammu and Kashmir.
It is being argued that the provisions of Article 14 (as applicable to the State of J&K) are not being violated as it provides equal protection of laws to all its State subjects/citizens.
Lastly, as pointed out by the ex chief minister of J&K, Mehbooba Mufti, “if we endeavour to weaken the uniqueness of Kashmir through judiciary, then those forces in Kashmir Valley, who want to put an end to the composite culture in Kashmir Valley and want to have people from one community (Muslims) only, with one attire and one way of life, you will only make them successful”
Article 35A (1954) was incorporated in the Indian Constitution through a Constitutional amendment even before the Constitution of J&K came into existence (1956).
All above mentioned provisions and legislations were drafted and accepted by ‘senior’ leaders of Independent India with the concurrence of the people of J&K and hence, it may be unfair to accuse only the people of J&K (Kashmir Valley) for creation / holding to such like provisions.
However, evolution of a democracy is an ongoing process and it is never too late to bring about corrective actions that are for the overall betterment of the society.
The evaluation of constitutional validity of Article 35A is what falls within the preview of the judiciary; it is the executive that will have to take the tricky call regarding the abrogation Article 35A. Centre government appointed interlocutor is already in the process of interacting with various stake holders in the State to obtain their views.
However, the executive decision will never be easy. The government will have to weigh various pros and cons, like the turmoil that it may create in the already burning Kashmir, the ripples in the global arena and upcoming general elections of 2019.