Debating Article 35A & the State’s Autonomy
“Accession to the Indian Union and its special status are two sides of the same coin and if there is a debate on the Article, you will have to debate the accession itself.”
The 1927 Hereditary State Subject order granted to the state subjects the right to government officials as well as the ownership of land, which were not available to non-state subjects. It must be noted that the Princely states were “state subjects”, not British colonial subjects. The accession of Jammu and Kashmir to the Indian Union on 26 October 1947, Maharaja ceded subjects were merely a defense, external affairs and communications to the Union. The Article 370 of the Constitution of India and the concomitant Constitutional Order of 1950 formalized this relationship continued and culminating in the 1952 Delhi Agreement, whereby both the state and union agreed that the extension of Indian citizenship to all the residents of the state.
The Article 35A was inserted into the Indian constitution which empowered the State legislature to define the privileges of the PR (Permanent Resident). Under this Article, state laws have barred non-residents to the right to acquisition of land and property, right to obtain a job within the state government or right to join any professional college run by the state government or get any kind of government aid out of the government to the non-residents.
Article 35A of the Indian Constitution is an article that enables the Jammu and Kashmir state’s legislature to define the PR of the state and endorsing with special rights and privileges. It is added to the Constitution through a Presidential Order. Bakshi Ghulam Mohammad of the Jammu and Kashmir National Conference was the Prime Minister of Jammu and Kashmir at the time of the 1954 Presidential order.
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. Thus, The J&K legislature can only alter the definition of PR through a law passed by a two-thirds majority. The Constitution (Application to Jammu and Kashmir) Order, 1954 issued by the President of India, in the exercise of the powers conferred by clause (1) of Article 370 of the Constitution, with the concurrence of the Government of the State of Jammu and Kashmir.
What is the issue that, most recently Charu Wali Khan and in 2014, an NGO We the Citizens and filed a writ petition seeking the striking down of Article 35A. The J&K Government responded by filing a counter-affidavit and sought dismissal of the petition. Attorney General K.K Venugopal has welcomed the debate on Article 35A, and told the bench of Chief Justice J S Khehar and Justice D Y Chandrachud that the petition against Article 35A raised “very sensitive” questions that required a “larger debate”. After which the court referred the matter to a three-judge bench and set six weeks for final disposal. The J&K Government’s position is seen as unsupported by the mainstream. It is probably, the reflection of opposite ideologies the coalition possess.
BJP led by RSS aims to alter the demography of the state by bringing and incentivizing the outsiders to settle down there, as it is one of the BJP manifestos to “land at cheap rates for the establishment of Sainik Colonies in major towns” for retired soldiers. The leaders of Jammu the region, where the grip is in the hands of BJP very firmly and they are quite supportive to its stand indeed which is huge fatal for the unification of the state. They have sought the repeal of Article 35A, saying that, it encourages the separate identity. This criticism by BJP as a provision that encourages alienation, deepens the concept of a separate identity and creates a political gap between J&K and the rest of India. One can easily observe the eruption of distortion and fragmentation in Kashmir. Article 35A, its first impact will be felt in Jammu where immigrants find a better feasibility comparison to Kashmir and the recent example is the immigrants from Rohingya, Myanmar has settled in the region. Article 35A is a constitutional mistake. It was incorporated into a presidential order and not through the parliamentary process, claimed Surinder Amabardar, BJP MLC from the state.
Nehru has once said, in his statement to the Lok Sabha on the Delhi agreement, likely the question will arise why full citizenship applies there. Since the time of Maharaja, there had been laws preventing any person from outside Kashmir from acquiring or holding land in Kashmir. Maharaja was much afraid of a large number of Englishmen coming for settling down there, because of the delectable climate. Maharaja stuck to this that outsiders should not be allowed to acquire property there and that continues.
Very rightly the National Conference leader and former chief minister Omer Abdullah said the state’s accession to the Indian Union and its special status are “two sides of the same coin” and “if there is a debate on (the legality) of the Article, you will have to debate on the accession itself.” All the opposition parties are being invited by the chief Minister Mehboba Mufti to come together in order to save the autonomy and special status of the state. The Valley remains in target and development along with progressive prosperity has been bypassed, which the mainstream has been talking about.
The valley has development deficit, peace of mind is forgotten, blood is flowing on the streets which have flooded the valley, the collation has done nothing to bring the peace of mind back but used humbug to deepen alienation and strengthen the gap. Nyctophilia is threatening, lacuna is observed by everyone and Responsibility is being unshouldered. The coalition has arachnophobia, the fear of failure. Separation of identity is the excuse to the autonomy of the state. The more provocation eases the militant organizations to attract the new entrants in huge and arrest the attention of the oppressed in their favour. This is not the way forward even the unwise will discard it. If the centre is really fancy to generate the cooperation and make prosperity possible, then the expertise is the need of an hour.
*The Author is pursuing Masters in Sociology at Jamia Milia Islamia, New-Delhi. He can be reached at firstname.lastname@example.org
Disclaimer: Views expressed in this article are those of the author’s and do not necessarily reflect the editorial position and policy of Oracle Opinions.