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ARTICLE 370 AND 35A: A HOLISTIC PERSPECTIVE

 

The Jammu & Kashmir is again in limelight when Supreme Court of India, on 10 July 2019  announced that it will hear the petition challenging the validity of Article 370 which provides special status to Jammu & Kashmir and appointed a three-member bench headed by Chief Justice of India. On the same day, the matter of abrogation of Articles 370 and 35A was also discussed in the Upper House of the Parliament. Government of the day reiterated its stand that Jammu & Kashmir remain an integral part of India and all issues pertaining to it are internal which will be dealt with in the framework of Indian Constitution ensuring the protection of rights and benefits of infrastructural development reaches to each individual of the state.

Baggage of the past

What led to the incorporation of Article 370 and 35A in the constitution of India? The framework for division of British India and guidelines for the Princely states were contained in “Mountbatten Plan 1947” Accordingly India and Pakistan were created through “Indian Independent Act 1947” and 552 princely states to integrate with either India and 13 with  Pakistan based on proximity and ethnic majority i.e. Hindu dominated state to integrate with India and Muslim dominated states with Pakistan . All princely states except Jammu &  Kashmir integrated with India by signing the Instrument of Accession. Jammu & Kashmir decided to remain Independent and signed a “Standstill Agreement”. However Pakistan, in violation of Standstill agreement invaded Kashmir with regular Army and tribals equipped with modern weapon systems in October 1947 to annex the state forcefully. Maharaja Hari Singh, ruler of the state signed the Instrument of Accession with India and sought military assistance and thus integrated with India. But Pakistan refused to acknowledge the sanctity of the Instrument of Accession alleging it being forced and considered it as fraudulent, to which India in January 1949 approached United Nation(UN) to declare Pakistan an aggressor and ask it to vacate remaining part of J&K. However, the UN had declared J&K a disputed territory and recommended for plebiscite post-Pakistan’s withdrawal of forces and subsequently reduction of troupes by India.

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At the same period, Mr. Sheikh Abdullah had emerged as a leader of masses in the J&K. The apprehension of plebiscite, if held and people of the state may decide otherwise, a meeting with Mr. Sheikh Abdullah was held to discuss the Instrument of Accession and work out the methodology to accommodate the aspiration of the people of J&K and make them feel safe and secure,  resulting in the signing of “Delhi Agreement” and paving the for Article 370. Besides the state was also permitted to have its own constitution giving more autonomy vis-a-vis other states of India. 

Article 370 

Article 370 was incorporated in Part xxi in the constitution of India, a “ Temporary, Transitional and Special Provisions of the constitution”. Article 370 provides special status to J&K wherein it had restricted the power of formulation of Laws to three of defense, external affairs, and communications which cover 31 matters of central and congruent and any implementation of rule other than these, the center is required to seek the consent of the state. Except Article 1,370 and other Provisions as specified in Presidential Order 1954, no other Provision of the constitution of India is applicable to the J&K.

Article 35A

Article 35A allows the J&K  state’s legislature to define “permanent resident” of the state and the genesis of Article 35A traces its root to a movement “Kashmir for Kashmiri” launched by Kashmiri Pandit community demanding that only Kashmiris should be employed in state government jobs. Legal provisions for the recognition of the status were enacted by the Maharaja Hari Singh and granted to the state subjects the right to the government officials and the right to land use and ownership, which were not available to non-state subjects through  Hereditary State Subject Order 1927. Mr. Sheikh Abdullah was adamant on retention of this subject during “Delhi Agreement” and the statement by the Prime Minister of India in the lower House of Parliament:

 “The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time past, in the Maharaja’s time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring a property. Related imageSo although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there. And that continues. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up and get the delectable places. Now they want to vary the old Maharaja’s laws to liberalize it, but nevertheless to have checks on the acquisition of lands by persons from outside. However, we agree that this should be cleared up. The old state’s subjects definition gave certain privileges regarding this acquisition of land, the services, and other minor things, I think, State scholarships and the rest.

So, we agreed and noted this down: ‘The State legislature shall have the power to define and regulate the rights and privileges of the permanent residents of the State, more especially in regard to the acquisition of immovable property, appointments to services and like matters. Till then the existing State law should apply.”

Article 35A was then inserted into the Indian constitution through a Presidential Constitution Order 1954 enabling the State legislature to define the privileges of the permanent residents.

Viewpoint

The procedure for amendment, addition and deletion of an Article is prescribed in Article 368 of Constitution of India. However, the Article 35A was implemented through a Presidential Order; in violation of Constitution of India as neither the Constitution nor Article 370 provide any authority to the President of India to introduce any new Article in J&K. Also Article 35A suffers from the violation of Article 14, Equality before the Law. The non-resident Indian citizens cannot have the rights and privileges in the areas of residents, employment, professional education and scholarship giving rise of some serious issues:

  • Violates the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property if she marries a man who is not a permanent resident and her children are not given Permanent Resident Certificate and thereby considering them unfit for inheritance – not given any right to such a woman even if she is a permanent resident.
  • Violates fundamental rights of workers and settlers like Scheduled Caste and Scheduled Tribe people living in the state for generations. The Valmikis brought to the state during 1957from Punjab, were given Permanent Resident Certificates on the condition that they and their future generations could stay in the state only if they continued to be safai-karmacharis . And 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 & whole private sector suffers due to the property ownership restrictions.
  • The refugees who migrated to J&K during the Partition in 1947 are the worst affected and cannot enjoy the basic rights and privileges since Article 35A stipulated 1944 as the cut off year in deciding the citizenship of Jammu and Kashmir.

The laws in a progressive and democratic society are framed to ensure protection of interests of each and every member irrespective of cast, creed, religion, gender, and must aim at socio, economic, political and religious growth. These laws must stand to scrutiny from time to time and undergo changes, in the backdrop of its efficacy for the purpose it was formulated.  Article 35A might have been a very wise, progressive and humanitarian decision to provide protection to the people of the state for their  survival in 1954 but its credibility in 21st century, where it has become a  major hindrance to development activities, discriminatory  and above all in  violation of basic human rights granted by the constitution,  is a matter of debate.

01 Aug 19/Thursday                                                   Written by Fayaz

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