Why is the separatist lobby so worried about the challenge to Article 35A? Why are they trying to dictate terms to the Indian judiciary?
The separatist lobby of Jammu and Kashmir is getting palpitations. Their leaders are desperately delivering speeches and statements. Their very existence seems threatened because the validity of Article 35A has been questioned in the court and by the public.
A section of the media is being prodded and pressurised to publish article after article to defend a ‘law’ that was enforced by circumventing due constitutional processes and which has been challenged in the Supreme Court of India. Their arguments in favour of this ‘law’ range from ‘conspiracy to change demography’ to ‘threat to special status’ and what not.
I am reminded of a quote from Shakespeare’s Hamlet, “The lady doth protesteth too much, methinks”.
India is a welfare state where all laws are enacted and enforced to ensure welfare of the people. If Article 35A is valid and beneficial, it will hold under its own steam during court proceedings. And if it is found to be legally invalid or anti-people, it has to be scrapped, giving way to a fresh and better legislation. Progressive laws can never be static. They must evolve. So where’s the problem? Why this hullabaloo?
If a law has become the darling of anti-India separatists, it becomes all the more imperative to reconsider it in toto. Can there be a law that benefits anti-India forces obviously working at the behest of Pakistan?
Who has benefitted from the provisions of Article 35A? Why is no one talking about that? Among all the plethora of content being published in favour of Article 35A and so-called ‘special status’, there is not a single story about how this law has benefitted the real people on the ground anywhere in J&K – even in the Valley.
The silence on public welfare issue is simple: this law has only helped a small coterie that has established itself as ‘representative’ of people and filled up its own coffers. This coterie comprises separatists, some media persons & bureaucrats and of course certain politicians. This coterie supports and is supported by terrorists – in other words Pakistan. The common Kashmiri has just been forced to become cannon fodder, either falling to the terrorists’ bullets or thrown in the firing line of security forces during anti-terror operations.
The unelected and self-proclaimed ‘leaders’ of Kashmir have no standing whatsoever among the Kashmiri people. Anyone who visits Kashmir Valley can smell the simmering anger against separatists, be it the Hurriyat Conference or ‘leaders’ such as Asiya Andrabi. “Inhonne Kashmir ko barbad ker diya (they have devastated Kashmir)” is a common utterance among Kashmiris whenever separatists are being discussed.
On Friday, Mirwaiz Umar Farooq warned of “massive agitation” if the “special rights” accorded by Article 35A were taken away. “People will hit the streets and resist it forcefully,” he said.
Is he threatening the people of India? That too on a matter which is sub-judice? Can the Indian polity allow this kind of hooliganism? When the apex court of India is hearing the case, this is nothing but an attempt to threaten and bully the system.
This palpable anxiety stems from the upcoming hearing of the petition against the constitutional provision by a three-member bench of the Supreme Court on 6th August. The plan is to mount so much pressure that the hearing either gets deferred or the Centre shies away from addressing the issue. Media reports are already indicating that the Governor of Jammu Kashmir has requested the Centre to defer the hearing scheduled on 6th August.
Will the government once again back down? Now, will the separatists dictate what laws the Indian judiciary should look into and what not?
What is Article 35A?
Article 35A empowers the state government to define who is the permanent resident of Jammu and Kashmir and to issue Permanent Resident Certificate (PRC) to those who fall under this definition.
Those who are granted ‘permanent resident’ status have access to rights and privileges enjoyed by citizens across India – right to public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. But those who are not granted this status are denied all these rights! This provision has denied basic rights to many communities living in Jammu-Kashmir itself for the past six decades.
On May 14, 1954, the President of India issued an order called the Constitution (Application to Jammu and Kashmir) Order 1954, which was implemented with immediate effect. 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, 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.
On 23rd July 2014, a New Delhi-based NGO ‘We the Citizen’ filed a PIL demanding to scrap of Article 35A. Later, four more petitions were also filed challenging the Article, which were subsequently clubbed together for hearing in the Supreme Court.
Who are the victims of Article 35A?
Lakhs of people in J&K are victims of Article 35A because without PRC they are denied the following rights:
Right to public sector jobs
Right to property
Right to higher technical education
Right to scholarships
Right to participate in State-level elections
Right to schemes relating to public aid and welfare
Women of J&K: If a woman from J&K marries a non-PRC holder, her family is denied all the rights accorded to a PRC holder. This, in effect, makes it very difficult for them to survive in the state. Many such families have been forced to shift out of the state, or to suffer the consequences.
This rule does not apply to men, who can marry at their will. Their wives and children are always granted PRC. This is gender discrimination at its worst because it’s sanctioned by law!
West-Pakistan refugees: Over 5000 families who migrated from West Pakistan to Jammu-Kashmir during Partition in 1947 have been living there since last 71 years. But they are still identified as ‘refugees’ and denied the rights and privileges of a PRC holder.
Three generations later, the families have grown but their situation has not improved. As of today, the future of their children is also bleak. After over six decades of living like bonded labour, these families want to be free of the ‘refugee’ tag, so that they too can live the rightful life of an Indian citizen.
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 so seamless that no one today dares identify them as ‘refugees’. Today, they are the rightful citizens of India, enjoying every right and privilege that the Constitution of India confers on all Indians.
Valmikis: The most depressing story is that of safai karamcharis 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 safai karamcharis (sweepers). These families agreed to work in the state after being promised ‘permanent resident’ status. What those poor uneducated people did not realize was that this ‘status’ came with a terrible rider: “subject to the post of safai karamcharis only”.
By law, their generations have been forced to work only as safai karamcharis – even denied promotions because they cannot work as anything but sweepers.
Their children have now studied up to graduation level or beyond, but are not eligible to apply for any other government jobs. They cannot even get admission to government-run professional institutes.
Gorkhas: Gorkhas settled in Jammu-Kashmir in the 18th century. A majority of them have been or are soldiers who have fought and made sacrifices for their land and people. Their population numbers around one lakh and is spread across JK, including Kashmir Valley.
Despite over a hundred years of residency and service, they too have never got the rights they deserve in independent and democratic India – because they are also denied PRCs and the associated benefits.
Abha Khanna is a senior journalist with 21 years’ experience.
She is currently the Media Director of Jammu Kashmir Study Centre, a think-tank
dedicated to research on issues and policies relating to Jammu and Kashmir.
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Last Updated 30, Jul 2018, 11:45 AM