Thu. Oct 24th, 2019

Aaj Ka Gyan

Think beyond the limits

Article 35A: A Description

4 min read

After the Centre decided to move additional troops into Jammu and Kashmir, fears that Article 35A may be abolished has risen.

In order to strengthen the Counter Insurgency grid as well as for maintaining law and order situation in J&K, deployment of additional 100 companies of CAPFs are ordered, the Home Ministry said in an order.

What is Article 35A?

The Article empowers the legislature of Jammu and Kashmir to define permanent residents of the state and also provide special rights and privileges to such persons.

Prior to 1947, Jammu and Kashmir was a princely state under the British Paramountcy. The people of the princely states were “state subjects”, not British colonial subjects. In the case of Jammu and Kashmir, the political movements in the state in the early 20th century led to the emergence of “hereditary state subject” as a political identity for the State’s people, and the legal provisions for the recognition of the status were enacted by the Maharaja of Jammu and Kashmir between 1912 and 1932.The 1927 Hereditary State Subject Order, passed by the Maharaja due to the pressure of the Pandit community which had launched a “Kashmir for the Kashmiri” movement, granted to the state subjects the right to government office and the right to land use and ownership, which were not available to non-state subjects.

Following the accession of Jammu and Kashmir to the Indian Union on 26 October 1947, the Maharaja ceded control over defence, external affairs and communications (the ‘ceded subjects’) to the Government of India . The Article 370 of the Constitution of India and the concomitant Constitutional Order of 1950 formalised this relationship.

Discussions for furthering the relationship between the State and the Union continued, culminating in the 1952 Delhi Agreement, whereby the governments of the State and the Union agreed that Indian citizenship would be extended to all the residents of the state but the state would be empowered to legislate over the rights and privileges of the state subjects, who would now be called permanent residents.

What Article 35A states?

“Saving of laws with respect to permanent residents and their rights. – Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:

(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or

(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects-

(i) employment under the State Government;

(ii) acquisition of immovable property in the State;

(iii) settlement in the State; or

(iv) right to scholarships and such other forms of aid as the State Government may provide,

shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.”

Objections to Article 35A:

It facilitates the violation of the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property, if the woman marries a man not holding PRC. Therefore, her children are not given Permanent Resident Certificate and thereby considering them unfit for inheritance – not given any right to such a woman’s property even if she is a permanent resident.

It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste and Scheduled Tribe people who have lived there for generations. The Valmikis who were brought to the state during 1957 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 (scavengers). 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. Good doctors don’t come to the state for the same reason.

Children of non-state subjects do not get admission to state colleges.

It ruins the status of West Pakistani refugees. Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu and Kashmir, they cannot enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu and Kashmir.

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 some by trampling over others, since the non-residents of the state are debarred from buying properties, getting a government job or voting in the local elections.