Article 35A remains as one of the most divisive provisions in the Constitution as mere talk of any alteration to it provokes sharp reactions from parties across the aisle. As the Supreme Court prepares to hear a PIL challenging the article, the government of Jammu and Kashmir and also people living inside the state all have raised concerns on the issue. Attempts to abrogate the article have been seen as an assault on the special status of Jammu and Kashmir. The apex court case arose out of a petition filed by an NGO called We the Citizens. The NGO filed a writ petition asking the court to strike down Article 35A. While the state government filed a counter to the petition, the Centre did not , leading to speculation that BJP-led government might be looking to end the state’s special status. But, first of all, it is important to understand what exactly the provision entails. Does it actually provide special rights to the citizens of the state.
The Centre’s decision to not come out in support of the J&K government’s position is seen as part of a series of moves to breach the state’s special status. The RSS and the BJP, which is part of the ruling alliance with PDP, are opposed to Article 35A because it bars non-state subjects from settling and buying property in J&K. Sangh groups are unanimous that the only way to permanently end the Kashmir dispute is to alter its demography by settling people from outside the state, with the right to acquire land and property, and vote in the assembly elections. The RSS claims that “J&K, with its oppressive Muslim majority, has been a headache for our country…”. The BJP manifesto for the J&K assembly elections had promised “land at cheap rates for establishment of Sainik colonies in major towns” for retired soldiers.
The J&K Constitution, which was adopted on November 17, 1956, defined a Permanent Resident as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has “lawfully acquired immovable property in the state”. The J&K legislature can only alter the definition of PR through a law passed by a two-thirds majority. The PR law replicated a state subject law promulgated by Dogra king Maharaja Hari Singh in 1927 following a strong campaign by Kashmiri Pandits who were opposed to the hiring of civil servants from Punjab because it affected their representation in the administration. The Kashmiri-Pandit agitation did not affect the Muslim majority because the Dogras largely kept the community out of the administration as a matter of policy.
The Orders have also been used to override provisions of the state Constitution, like changing the Sadr-e-Riyasat (President of the State) to the governor, prime minister (of the state) to the chief minister and extend the powers of the Supreme Court and Election Commission to Jammu and Kashmir. The law governing Jammu and Kashmir is thus quite complicated, rather like the state’s current situation. As matters stand though, it seems clear that if any change is made to the law, as it applies to the state’s citizens, it would require a fair amount of legal maneuvering to ensure a smooth transition.
In spite of the political rhetoric, there is more than a grain of truth in these apprehensions. Any alteration to Article 35A may leave the government at the Centre with a hot mess in its hands, damaging the vestiges of goodwill that ordinary Kashmiris may still have towards the Union of India. Here’s why. Article 35A was added through the Constitution (Application to Jammu and Kashmir) Order, 1954, issued under Article 370 of the Indian Constitution, which grants special autonomy to the state of J&K. The J&K Constitution (J&K is the only state allowed to have its separate Constitution) was adopted on 17 November 1956. It defined a permanent resident as someone who was a state subject on 14 May 1954, or has been a resident of the state for 10 years, and has lawfully acquired immovable property in the state.
This is to underline the fact that the constitutional relation between the State and the Centre is based on Article 370 and provisions like Article 35A. If anybody tries to weaken these, it will weaken the constitutional relationship between the state and the Centre. According to the opponents, the conception of a permanent resident, derived from Article 35A, is chiefly responsible for the predominance of Muslims in the valley. Should the executive write it down, the move would then usher in a demographic change in J&K, with new settlers going there to live.
Any attempt to undermine, or dilute, these principles, already enshrined in the Constitution and wrenched after many decades of violence and bloodshed, can only serve to perpetuate the current cycle of unrest. In any case, it won’t act as a deterrent to terrorism in the valley. As Mufti tellingly said to the government at the Centre, By challenging Article 35A you are not targeting the separatists. Their agenda is different and it is totally secessionist.
In conclusion having said that I would make an important point here that the government of India and also Jammu And Kashmir should understand that the Kashmir has been on the boil since last July, after Hizbul Mujahideen leader Burhan Wani was killed by the Indian Army. Since then, hundreds of ordinary people have been injured or killed in clashes with the armed forces and regular Internet shutdown has crippled normal life in the state. Taking a hasty step to deal with Article 35A under such dire circumstances, out of purely jingoistic or ideological concerns, may prove to be the last straw in the Centre’s relationship with the state.
Shahid Majeed Mir can be reached at mirshahid363@gmail.com
