WHAT IS ARTICLE 35A

Published by
Archive Manager
Jul 18, 2015, 12:00 am IST

Cover Story : Victims of Anomaly

The Parliament is supreme and has the sole right to amend the Constitution as prescribed in the Article 368. This is the basic lesson we learn about the features of the Indian parliamentary democracy. It is very unfortunate that a Presidential Order of 1954, which challenged this very foundation of the democracy, was never discussed or debated in the Constitutional discourse. This has victimised many individuals and groups in J&K by denying them the basic rights like Right to Vote, etc. Jammu Kashmir Study Centre, a Delhi based think tank, has brought out the victims of these Constitutional anomalies created by this executive insertion in the Constitution. It is a right to question the misuse and abuse of Article 370, such as the Article 35A.

The greatest gift of the Constitution to the people of India is Fundamental Rights. These are basic human rights that all civilised societies treat to be essential and indispensable for human existence. They promise that all Indians would be treated equally, offered equal rights in government employment, education and freedom to travel and settle anywhere within India. They apply throughout India to each individual, but not when it comes to the State of Jammu & Kashmir. This anomalous situation is created by Article 35A, an Article created through misuse and abuse of Article 370.
Article 35A is sinister not just because what it seeks to do, but above anything else it is the manner in which it has been introduced. The power of making changes to the Constitution, especially introducing new provisions is given exclusively to the Parliament by the Constitution. The Parliament possesses these powers because it is the body that represents the people of India directly, including the people of Jammu & Kashmir. This is the place where all proposed changes to the Constitution are debated in public eye and implications of each clause analysed. Article 35A was never taken to the Parliament and never debated. It was added behind closed doors that too by the orders of the President. For many scholars of constitutional study, Article 35A does not exist, because it is nowhere found in the body of the Constitution.

Women

Endless saga of Despair

“Despite being permanent citizen of J&K, I cannot help my children in studies or getting job. The only fault that I inadvertently committed was that I married a man having no permanent resident status. In spite of being a resident of J&K, my husband did not have PRC because his mother, a permanent resident of the State, married to a non-permanent resident belonging to Himachal Pradesh. We are two generations of women who find themselves in a terrible statue of statelessness because we married the men who do not hold the permanent resident certificate in J&K,” Rashmi Sharma started crying while sharing her plight. She says her children are suffering for no crime.
The twinge and torment that Rashmi Sharma of Jammu suffers everyday is basically suffered by lakhs of women in J&K thanks to the mindless provision of Article 35A. The children of the women married to non-PRC holders are denied Permanent Resident Certificates in the State. Not only this, the children born to such women do not have right to vote, study in professional institutions or opt for government jobs or get scholarships in the State. However, the men married to non-PRC holder women can transfer their property to their offspring.
The helpless women of the State continue to be victims of severe gender discriminations since decades. Interestingly, if a man marries outside the State, he can bring home his wife who is entitled to the Permanent Resident Certificate (PRC) and all ‘privileges’ it entails. These women may be from any part of the world, within India or abroad. Children born from these women too get PRC rights in the State without any hurdle. They can enroll in any school or college funded by the State Government. They also have the right to get admissions to State-run professional colleges.
But if a woman of J&K marries outside the State, she is denied all rights. She cannot settle in the State even if the circumstances in life demands. She loses all rights the day she marries. However, after a long legal battle in 2002 such women won the right to retain their PRC status after marriage. But the discrimination continues–because their children are still not eligible for PRC. They also cannot inherit their mother’s property or buy property themselves. Such a situation is particularly traumatic and extraordinarily painful for women who marry ‘outsiders’ and later get widowed or divorced. They face added trauma as their children have no future in the State.    n

Some claim that Article 370 allows the President to ‘modify and amend’ the Constitution while applying it to Jammu & Kashmir. The first constitutional challenge then is: Can the President be even allowed to disturb the Constitution in this fashion? What if the President decides to remove ‘Right to Life’ from the Constitution? The case law of the Supreme Court has greatly advanced since Article 370 and 35A were introduced. Today, a provision granting such sweeping powers to the President would be unconstitutional. It contradicts, what is called in legal terms–separation of powers. Which means the job of passing legislations and making changes to the Constitution is an exclusive power of the Parliament. President cannot intrude into the domain of Parliament. The only authority the President has is of signing the legislation or sending it back for reconsideration by the Parliament. If the Parliament passes it again, the President has to accept it and sign it. In the Indian Constitution, the President does not have the power to override the decisions of the Parliament. It is only the curious case of Article 35A, where the Parliament was not even informed and the President tinkered with the Constitution. Second, even assuming the President has the power to ‘modify and amend’, these words do not authorise introduction of a new provision in the Constitution altogether. Article 35A is not a modification to any existing provision in the Constitution, but a new provision altogether.

Annexure I
THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954
(j) After Article 35, the following new Article shall be added, namely:—
“35A. 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.”.

  • Article 35A was an amendment in our Constitution without the involvement of India's Parliament.
  • Article 35A is a violation of the basic structure of our Constitution.
  • As a result of the implementation of Article 35A, lakhs of Indian citizens have been deprived of “JUSTICE, social, economic and political” and “EQUALITY of status and of opportunity”.

The title of Article 35A itself speaks about the motive of the provision. It starts by the word “savings of laws”. Savings provision is added to protect actions which would otherwise be unconstitutional. Article 35A goes further to say that the Article is created to save “special rights and privileges” in favour of Permanent Residents (PR) and impose restrictions on any other person from getting these special rights and privileges. The high point are concluding words, where it says that no such laws that provide for special rights and privileges can ever be void because they are contrary to Fundamental Rights. Two conclusions follow. First, the makers of this Article were aware that what they want to protect is unconstitutional and second, the jurisdiction of Supreme Courtis sought to be indirectly destroyed.

IMPLICATIONS  of  ARTICLE  35A

  • This Article has denied certain basic rights to many communities living within Jammu-Kashmir for the past six decades. It has also taken away the rights of all Indians living outside Jammu-Kashmir from settling in the state of Jammu-Kashmir, an integral part of India.
  • Article 35(A) enables the State Assembly to define ‘permanent residents’ and to give them special rights and privileges, as well as to restrict the rights and privileges of all citizens of India who do not fit into this definition of ‘permanent resident’.
  • As a consequence, no one except those defined as ‘permanent residents’ are entitled to property rights; employment in state government; participation in Panchayat, municipalities and legislative assembly elections; admission to government-run technical education institutions; scholarships and other social benefits. 
  • Article 35A is an example of the abuse of Article 370.

Even before the Supreme Court can decide whether these provisions are constitutional or not, the State Government has been granted a certificate that come what may, all your actions are constitutional. This ‘self certification’ that a provision is constitutional is unheard of in any democracy. No deprivation of the power of Courts to review unconstitutional actions is acceptable to the Indian Constitution. Similar efforts to tinker with the Constitution by Indira Gandhi were struck down by the Supreme Court in cases such as KeshavanandaBharati and the decisions of the Supreme Court thereafter. Article 35A in its present form is unconscionable.

West Pak Refugees

Height of Discrimination

The people who migrated from West Pakistan and somehow got stuck to J&K during the Partition in 1947 are the worst sufferers. Even after six decades, they are still identified as ‘refugees’ and forced to live in ‘camps’. Now their third generation also is tagged as ‘refugees’ and denied rights and privileges that should have been immediately granted to those who were forced to migrate from Pakistan.
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. They are fully integrated into the mainstream and they are the legitimate citizens of India enjoying every right and privilege that the Constitution confers on all Indians.
On the other hand the refugees who stuck in J&K are forced to live as bonded labour even today. They are struggling hard to be free of the ‘refugee’ tag. Around 5,764 families consisting of 47,215 persons migrated from West Pakistan to different areas of Jammu Division. No land was allotted to them by the State Government. They were able to occupy some land, which was later allowed to be retained by them without conferring upon them the title of the land because their non-permanent resident status. This means they can stay on this land, but cannot sell it or buy any other property. “With no right to property, higher education, government service, we are forced to live a sub-human life,” said Yashpal Bharati.
The West Pakistan refugees are mostly from deprived sections and more than 80 per cent of them belong to SCs. Now their population has grown to about three lakh. It’s obvious that the land they could retain six decades ago cannot be sufficient now. They cannot get admissions in any State-run professional colleges or cast their votes in elections. On one hand the authorities at the Central and State levels took a number of steps to rehabilitate even the nomadic tribes by allotting them lands on permanent ownership basis, nobody cared for these ‘refugees’ from West Pakistan. Is it acceptable that victims of Partition, who entered Indian territory in the hope of succor, continue to be persecuted at the hands of Indian authorities?   

Article 14 of the Constitution promises that all Indians shall be treated equally and Article 35A is created with the objective of defeating equality and creating special rights and privileges. The effect of Article 35A is that it destroys equality between the residents of Jammu & Kashmir possessing the Permanent Resident Certificate (PRC) and residents of rest of India; and between residents within the State of Jammu & Kashmir that possess the PRC and those do not. Those not possessing the PRC and residing in the State are residing there since 1947, mostly the refugees that came from West Pakistan.

SOME SERIOUS QUESTIONS

  • What exactly is the constitutional status of Article 35A?
  • How can the President of India step into the shoes of the Parliament and amend the basic structure of the Constitution without Parliament’s consent?
  • This question can be asked in another way: Can the Prime Minister along with the Council of Ministers bypass Parliament and make whatever changes in the Constitution as they please? The President, after all, can issue an order only when told to do so by the Cabinet?
  • Can democratic India allow any section of its population to be treated as second-rate citizens in any part of the country?
  • Shouldn’t we, as responsible citizens of India, challenge what appears to be a clear cut case of circumventing constitutional procedures?
  • What can be done to provide immediate relief to the lakhs of people who have suffered for decades because of this constitutional fraud?

They can contest and vote for Parliament elections but cannot contest and vote for State Assembly elections or Panchayat elections. The West Pak refugees who settled in other parts of India enjoy all rights but not those setled in J&K. Article 15 of the Constitution directs that no one shall be discriminated on the basis of place of birth. By discriminating between PRC and non-PRC the State of Jammu and Kashmir is violating Article 15. The gravest anomaly is restriction on acquisition of immovable property and settlement in the State. It is a fundamental freedom of every citizen of India, promised by the Constitution under Article 19(1)(e) to settle anywhere in the country. There are no justifiable reasons for imposing such restrictions.
Article 35A has become a basis for violation of right to property of women and their children. PRC is inheritable for men not for women. The State Government passed an executive order, whereby once a woman with PRC marries a person from outside the State; she loses her PRC, right to property and other rights. In Sushila Sawhney vs State of Jammu & Kashmir the High Court of Jammu & Kashmir held that the provision depriving women of property rights is unconstitutional. Despite this decision, the children of a woman holding PRC married to someone outside the State are deprived of PRC and right to property. The State Government is not content with the decision and is now confronting the judiciary. In order to overcome this judgment, a Bill was introduced and passed by the Legislative Assembly to undo this decision. The Bill is now pending for consideration of the Legislative Council.

Gorkhas

Warriors being Victimised

Known as a warrior community all over the country, the Gorkhas settled in Jammu & Kashmir in 18th century. Majority of them are soldiers, who fought in the ranks of Maharaja Ranjit Singh, whose commander-in-chief was Gulab Singh, a landlord of Jammu. Their population numbers around one lakh and is spread in J&K including Kashmir Valley.
They have been residing in the State for over a hundred years. They have made supreme sacrifices for the nation but they have never got the rights they deserve in Independent India. They feel their miseries have increased manifold after Independence. They face big hurdles in getting PRC in J&K without which the educated young Gorkhas and girls cannot get a government job or admission into educational institutes.
“Around 60 per cent of Gorkhas are still denied PRC. They face similar problems as all the other non-PRC holders resulting in facing economically, socially and educational backwardness,” said Capt. Raghunandan Singh, while talking to Organiser in Delhi.   

Article 35A gives the power to discriminate while giving government jobs. There are reserved only for PRC. Article 16 of the Constitution specifically directs that no person shall be deprived of equal opportunity in a government job. The service rules have been so drafted that only the officers from State services can take decisions relating to PRC. An IAS Officer, superior to such an officer in that department has no power to take decisions on these matters.

Valmikis

Destined to work only as Safai Karamcharis

While the Constitution of India abolished untouchability and discrimination on the basis of caste, thousands of Valimikis continue to be tied to the condition that they will work only as scavengers. “How educated we might be, we can get government job in J&K only as a Safai Karmachari,” says Eklavya of Jammu. His father who works as a Safai Karmachari in municipal corporation was denied promotion because he did not have a PRC though he was otherwise eligible. Joginder Singh, another member of Valmiki community agrees that they are still buried under a rigid, oppressive caste system. The Valmikis are even denied caste certificates because they do not have PRC.
In 1957, around 200 Valmiki families were brought from Punjab to J&K by Bakshi government specifically to be employed as sweepers. These families agreed to work in the State after being promised that the ‘permanent resident’ clause would be relaxed in their favour. After a lapse of five decades, family strength of each family has increased and number of employees has gone up. However, their plight is that they are ‘permanent residents’ of Jammu-Kashmir only to the extent of being Safai Karamcharis.
Their children have studied up to graduation level but are not eligible to apply for government jobs. They can vote for the Lok Sabha elections, but not for State Assembly or municipality elections. The colony that was allotted to them in Jammu (Valmiki Colony, Gandhi Nagar, Jammu) has not been regularised till date. “People in the State or the country are not aware of our condition and issues. We suffer everyday. Our young generation is so frustrated that they have started talking of suicide…. My children curse me and my forefathers for settling down in this State. I appeal to the countrymen to help us get the rights that every Indian citizen is entitled to,” says Mangat Ram while explaining the plight of his community.    n

Article 35A allows the State Government to grant scholarships and other aids only to PRCs. The Prime Minister has also declared scholarships for students of J&K to study in other parts of India. The residents of J&K who lived there fore more than half a century but do not have PRC are deprived of these scholarships. They also deprived of benefits of all centrally sponsored schemes. Majority of the residents who do not have PRC there belong to SC/ST/OBC.
The Permanent Resident (PR) is so defined that anyone coming into the State after 1947 is excluded. The definition of PR can be changed, but all rights for doing so are given to the State Assembly by Article 35A. This power has been abusively used by the State Government. A disturbing example is of thousands of Safai Karmacharis in the State. In 1957 there was a strike of cleaners in Government service.

Human Rights at stake, Not special status

The motive of the Constitution is to ensure well being of the citizens. The Constitution never envisioned to provide rights to one segment of a population over other. Recently, some facts that have cropped up in journalistic circles raise some serious questions. J&K Research Centre on July 11 declared to contest the constitutional validity of Article 35A in the Supreme Court of India. Just under the lieu of this Article millions of citizens of India in J&K are devoid of their basic civilian rights.
Representatives of such oppressed civilian class have been telling the media about their ordeals frequently. These are mainly those citizens that have not been awarded permanent resident status in J&K, some of them include those who migrated from West Pakistan back in 1947, Valmikis, and Gorkhas. Those who cannot obtain permanent resident certificate, they do not have rights to buy property, earn higher education or government jobs or in fact vote in assembly or panchayat elections.
Encroachment of human rights is an important issue, and when there are millions of citizens with devoid set of fundamental rights, the nation as a whole should come forward to find a solution to this tragic problem.
But, the sad part arises when most of such human rights issues get trapped within vested interests of individuals. The arise of Article 35A as an emerging issue led former Chief Minister Omar Abdullah tweet: that his party, the National Conference would strive to oppose every effort being resolved in removal of Article 35A. In response to Omar's tweet, when some people asked him, if he finds millions of people being deprived of basic rights as justified, he certainly had no answer.
State Minister Naeem Akhtar, responded that he was determined to preserve the “special” status of the state. Response from other leaders from the state seem to worry more about the removal of “special status” to the state, instead of showing concern about human rights abuse there.
This article was secretly made part of the way the Constitution and the way from voices from the states are severely echoing for continuance in state's relationship with special status, it can be the case of guilty conscience or mole in thief's beard.
But, why has been the special status awarded to the state at all? Thousands of crores from central exchequer are awarded to the state each year, yet it does not come across as developed by any parameters. Apart from Srinagar and Jammu capital regions, basic facilities are not available anywhere in the state. Nestled in the beautiful valleys of the Himalayas, 90 per cent of the state, even today, is still out of reach of tourists Unemployment is heavy, as a result of 'Permanent citizens' conditions, making industrialisation not see the light of the day. If a “permanent resident” is asked about benefit of “special status”, he will certainly not be able to tell.
Many people argue that population scenario within the state can only be saved by a  “special status”. This is factually wrong as there are many states and territories within the country, where the local population has adopted some provisions to be safe and succeed. HP, Mizoram, Meghalaya, Vidarbha, some regions of Gujarat serve as leading examples in this case. These regions never felt the need to be accorded a “special status”. However, in the present context a lot of special groups, especially politicians and separatists within the regular population are enjoying the current context of things. Innumerable wealth within their homes is now being questioned by their population as well. Those who used to walk bare foot are now travelling in long cars. But now the populace is little being affected by the propaganda of nonsensical approach. And, politicians and officers must now muster the courage to face this truth.
Abha Khanna Gupta (The writer is a social worker & Director Media Coordination JKSC)

The Government requested people from Punjab to fill these vacancies and promised them to give PRC. They were given a PRC, but subject to being a Safai Karmachari.
The Preamble of the Indian Constitution starts by the words “We the People of India…” It does not allow any discrimination between people based on the State to which they belong. But Article 35A creates a rift: two categories one class with special rights and privileges–the PRC holders and the rest other people in the State of J&K and rest of India.
Anirudha Rajput (The writer is eminent Supreme Court lawyer and Director of JKSC)
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Published by
Archive Manager
Jul 18, 2015, 12:00 am IST

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