Analysis : Articlesof Inequality

What is troubling the leading politicians in the Kashmir valley? It is the durability of Article 35A of the Constitution of India.

Published by

Archive Manager

Aug 28, 2017, 01:01 pm IST

J&K’s special status under Article 370 and Article 35 A is blatantly discriminatory, and needs to be reassesed. It might be a good politics for Kashmir leaders, but in the long run it has hampered the state’s economic growth and made it a laggard one

Brig (retd) Anil Gupta
What is troubling the leading politicians in the Kashmir valley? It is the durability of Article 35A of the Constitution of India. The Supreme Court will hear petitions challenging the special rights to J&K and their permanent residents have against the Indian government and other Indian people. Much of these special privileges are reflected in Article 35 A of the Constitution, and the Supreme Court is slated to decide if they are valid still. The court might look at Article 370 too, which speaks about the special status of J&K.
Let the Supreme Court debate and decide the Constitutional questions, as it sees best. But the people at large have some natural questions on the current special status of the J & K and its people have in relations to the rest of India, and will hope that fair and just answers are reflected in the law. So, what are the questions?

What is Article 35A

THE CONSTITUTION (APPLICATION TO JAMMU AND
KASHMIR) ORDER, 1954
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”.

Its Implications

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.

Article 35A of the Constitution, and a few other legal provisions, state that it is only the legislature of Jammu and Kashmir that may define the ‘permanent residents’ of that state. They further provide that J&K’s permanent residents alone are allowed to settle in the state, to acquire immovable property, to get jobs under that state government, to contest and vote in the elections for the state’s legislature and to receive scholarships or other aid from J&K. Other persons, for instance, people from Punjab or Kerala, cannot have those rights in Jammu and Kashmir. People from Panama and Kenya cannot also have those rights. How does the law prevailing in these places treat people of J&K? Well, any permanent resident of J&K meets no legal bar in enjoying any rights in Punjab and Kerala on par with people of the two states. He cannot, of course, hope to enjoy rights in Panama or Kenya like the citizens of those countries. But yet, people from Panama, Kenya, Punjab and Kerala are treated alike in J&K, deprived of some key rights that J&K’s permanent residents hold. And whose army will protect the territory of Jammu and Kashmir, fighting militants and armed intruders from Pakistan? Of course, India’s army – not of Panama or Kenya. Will any self-respecting Indian, who is not from J&K accept all this, even as he wishes everyone in that state well?
Assume that for some historical reasons, instead of J&K, Tamil Nadu or Bihar and its “permanent residents” have been enjoying all such special rights. Then you will see all leading politicians of Tamil Nadu or Bihar protesting any move to dismantle those special rights while the rest of India would want them withdrawn. Surely, J&K and its people will also object to the ‘permanent residents’ of Tamil Nadu or Bihar enjoying distinct privileges when other Indians don’t have them.

Fighting Discrimination

Gorkhas
Known as a warrior community all over the country, the Gorkhas settled in Jammu & Kashmir in the 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.
Valmikis
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, the family strength of each family has increased and a number of employees have 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 every day. 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.

Many politicians of Jammu and Kashmir, including chief minister Mehbooba Mufti, say that the state’s cultural identity must be preserved and hence the special rights of the state’s
permanent residents have to be retained. This is not a valid argument. Do Punjabis, Bengalis, Tamilians or Kannadigas – and people from other regions of India – have no cultural identity? Or, have they lost it for want of a special protection in the Constitution like Art. 35A?
Also, lakhs of Asian Indians and their descendants live in the USA retaining their cultural habits, without a special provision in the US Constitution. It happens because all persons may carry their cultural habits and identities, without offending people of other cultures, wherever they reside in a democracy. Then they will be largely accepted by neighbourhood people of other cultures. Not just Indians, an American too hosted a Diwali celebration in his home in 2016 to welcome the spirit of the Indian festival. That was President Obama doing it in the White House. If Indians and other nationals settle in the US, buy houses, acquire green cards, become citizens and get elected to the Senate and the House of Representatives, has American culture disappeared from the US?
J&K’s politicians and public men who ask for retention of special rights under Art. 35A, often criticise the role of India’s army personnel who patrol the state. Countless Kashmiri men and women also throw stones on Indian soldiers, knowing that their targets carry fire arms. These scenes of apparent audacity have a hard reality behind. Kashmir’s politicians aiming to become or continue as chief minister or other ministers know that they can coolly ignore, or even decry, India’s army and yet its men in uniform won’t harm them. But if the local leaders boldly condemn and call for action against nsurgents and militants operating in J&K, those ‘netas’ will face heat from those quarters and their security will be threatened. So long as terrorists and their weapons hold sway in Jammu and Kashmir, the ordinary people of the state will also feel safe and secure under their armed militant masters, rather than under a law-abiding accountable Indian army.
If a nation confers huge special privileges on one group of people and imposes massive disabilities on another group, without an acceptable purpose, two consequences follow. One, the disadvantaged people are not going to accept their plight lightly. Two, the favoured ones are not going to give up their privileges easily. Here the nation itself puts one group of people against another. So long as a flash point is not reached the unfairness of this arrangement may continue.
Massive rallies and agitations by people of some castes and groups in many states are showing up, demanding that those people be elevated to the official ‘backward’ status so they would also be eligible for reserved jobs. This clamour is resented by members of other castes who enjoy long and entrenched advantages for themselves through the reservation. The result is, an unfair law has pitted a part of the people against another. Art. 35A creates similar clashing attitudes among the people of J&K and the rest of India.
True, the Indian Constitution accords a few special rights to people of some North-Eastern states, for example, Nagaland, Arunachal Pradesh and Manipur. They are suitable for the nature and social habits of local people in those regions. Further, in the same breath, the Constitution confers special powers and jurisdiction on the central government for maintaining law and order in some of those states and for administering some areas – which are restrictions on the powers of state governments. These special provisions help India’s strategic purposes too, in those border areas.
As for J&K, most of Kashmir’s political leaders and heads of its militant, separatist and sundry regional groups consider that the special rights for that state are their birth rights for all time and a legal limitation on India–implying that in J&K, the Union of India and the rest of the country will be regulated by that state for ever. This is the difference between the special rights enjoyed by people in J&K and in North-Eastern states. Also, J&K shares borders and LoC with a hostile and intruding neighbour. With all this, India should have a firmer and a stronger presence in J&K.
Jammu and Kashmir has special rights in place for its permanent residents since about 1927. This has not ushered in significant or speedy economic development to the state. Thanks to the special provisions of law, local politicians in the state will love to have a tightly preserved territory to fight for office and power, with fewer players left in the arena. If Indian army will endlessly fight militants and terrorists in J&K, while surely safeguarding the state’s available land area, it is good for selfish local politicians who keep silent about militancy and keep faulting with India’s jawans. Poor residents of Jammu and Kashmir are the innocent and ignorant sufferers.
(The writer is Jammu-based Security analyst)