Lately the issue of 35 A has been widely debated and the opinion of different political and non political organisations is completely divided on it. The fact of the matter is that article 35 A was enacted prior to accession of Jammu & Kashmir with India and any attempt to repeal the law can not only create chaos in Jammu & Kashmir but it will also have an adverse effect across the length and breadth of the country. Different ideologies have expressed different narratives about 35 A, but to understand this article, it is imperative to understand the history and circumstances under which this article was enacted in state.
Brief history about article 35A
“In 1920s during the rule of Mahraja Hari Singh, demands had been raised by the Kashmiri Pandits and Dogras that outsiders should not be allowed to settle in the state to take away the opportunities of acquiring property and government jobs. “At that time people of west Punjab neighbouring Jammu and Kashmir were highly educated as compared to people of Jammu and Kashmir. It was easy for them to get jobs in Jammu and Kashmir since people of Jammu & Kashmir could not compete with them. “Maharaja Hari Singh was very much concerned about the issue and in order to address the concern of Kashmiri pandits & Dogras, Mahraja Hari Singh enacted article 35 A under notification number I-L/84 on 20th April 1927 to define state subjects (Mulki) . “The article gave Jammu and Kashmir a carte blanche to determine the ‘permanent residents’ of the state & grant them special rights and privileges in state sector jobs, acquisition of property within the state, public aid and welfare schemes. The notification I-L/84 classified four grades of “State Subjects” (Mulki). “Class I –Those persons who were born and residing in the state before the reign of Maharaja Gulab Singh and those who had settled and been permanently residing before 1885. Class II – Those persons who had settled in the state before 1911 and also acquired immovable property. “Class III – Included those permanently residing in the state and who acquired any immovable property after ten years of continuous residence “Class IV – Included those persons those not covered under Class I,II,III”
Status of article 35A after J&k acceded with India.
“It is pertinent to mention here that following the accession of the state to the Indian union on 26 October 1947, Maharaja ceded control over defence, external affairs and communications to the Government of India. After accession Indian army landed in Srinagar by airplanes and defeated Pakistan. “Later article 35A of the constitution of India was enacted vide a Presidential order i.e. The constitution (application to Jammu and Kashmir ), issued on 14th May 1954 while exercising the powers conferred by Article 370(1) of the Indian Constitution and with the concurrence of the Government of the state of Jammu and Kashmir .
Current issues & Divided opinions
“Recently some people have demanded to scrap article 35A claiming that the article restricts establishment of industries and projects which could generate jobs for local youths.“It is further claimed that it facilitates the violation of the right of women to ‘marry a man who is a not a permanent resident, by not giving the heirs any right to property. Therefore, her children are not given permanent resident certificate and thereby considering them not qualified in law for inheritance. “The views of non-resident private sector and professionals suffering due to the property ownership restrictions has also been highlighted. “Besides the issue of Valmikis and West Pakistan Refugees have also been highlighted. “But the fact of the matter is that article 35 A does not restrict industrialization in Jammu and Kashmir and for many decades many national and global companies have invested in Jammu and Kashmir. Even non state subjects can acquire land in state by getting lease of 90 years or more which can be extended after that . Besides non state subject industrialists are also provided with benefits which no other state in the country provides. At present there are not only national companies but also multiple global companies who have been running their business in state which include Siemens, Wallmart and many others.“Besides most of the political and non political organisations have spoken in favour of article 35 A . They have said that attempts to tinker with Article 35A of the constitution would have serious consequences.“In its essence there is a deepening feeling of uncertainty in State of Jammu and Kashmir .“Some organizations who have spoken about maintaining status quo of article 35 A have alleged that many national and multinational companies who invest in Jammu and Kashmir after signing agreement on condition to provide technical and non technical jobs to locals, violate agreement by not giving preference to state subjects and by hiring non state subjects as a result the unemployment has been increasing immensely of late .
“Article 35 A has faced criticism from organizations who are affiliated with a particular political party. They claim that the article is against the unity of country but the fact of the matter is that article of similar nature has been adopted by many states in India which extends them special status. “The myth perpetrated about Article 35-A of Jammu and Kashmir by those who are shouting load against it are actually misleading people. “They aim to divert attention of people from real issues like health care, education, security and economy. “Himachal Pradesh inspired by article 35-A also enacted law with similar nature that of Jammu and Kashmir. “Besides there are 11 states that have privilege of special status of similar nature with respect to Jammu and Kashmir.“The articles that accorded special status to other states are as follows.““ Article 371 – Special provision with respect to Maharashtra and Gujarat “Article 371A – Special provision with respect to Nagaland “Article 371 B – Special provision with respect to Assam “Article 371C – Special provision with respect to Manipur “Article 371D & 371 E – Special provision with respect to Andhra Pradesh “Article 371F – Special provision with respect to Sikkim““ Article 371 G – Special provision with respect to Mizoram “Article 371 H – Special provision with respect to Arunachal Pradesh“ “Article 371 I – Special provision with respect to Goa “All these provisions cater the needs of special circumstances that exist in those areas in order to provide the constitutional remedies for various socio-economic challenges. “In the case of article 35 A the provision mandates that no act of the legislature coming under it can be challenged for violating the constitution. Abrogating that mechanism is not just abrogating a specific policy few people may dislike but it is repudiating an important part of the legal edifice on which India’s claims rest. Abrogation of Article 35-A may have serious implications. “Furthermore in view of the commitments made by Government of India (GOI) that took the shape of constitutional safeguards and in view of the constitutional position, all the rights and privileges available to permanent residents of the State of J&K are protected and immune from challenge. Article 35A and article 370 acts as a bridge between Jammu and Kashmir with India and those who are speaking against it are ignorant of the fact that abrogating the article can lead to collapse of the bridge. It is in the interest of nation that article 35A is respected. And as for as the issue is concerned about a state subject lady if marries to non state subject loses her and her children’s right to inherit property in Jammu & Kashmir , it is a humanitarian issue which needs to be addressed by an elected Government of Jammu and Kashmir state . Besides the issue of west Pakistan refugees and Valmikis is equally genuine and an elected Government of Jammu and Kashmir must consider their genuine demand.
Article 35A is beyond law , courts & constitution to be explained. We can neither endure the historical patchwork, nor we can fix the issue by only digging up the past . We can only address the issue by developing trust among masses and by throwing cold water, not fan the fires of polarization. “Furthermore it is general public who has to disallow politicians from exploiting them in the name of religion, region and laws .“History is witness that all sections of society in Jammu and Kashmir have endured pain for which words fall short to express; it is a history full of oppression and exploitation. “During Dogra’s rule voting rights were restricted to only 3 percent of the population for Muslims. Only literate persons having an annual income of Rs.400 or more were permitted to vote. Women and illiterate were totally barred from exercising this franchise . Exclusion of Muslims from serving in both the military and civil services lead to the growth of dissatisfaction in the minds of Muslims. “Where as prior to Dogra rule during Afghan rule in 17 th century , Hindus were exploited and oppressed . At that time Afghans ruled Kashmir and unleashed a reign of terror on the people. Under persecution, many Kashmiri pandits migrated from Kashmir. “ During both Dogra and Afgan’s rule, people of Jammu and Kashmir were exploited to gain kind of communal sympathy . This phenomenon has been repeatedly exercised ever since by morally corrupt politicians . The hatred among different communities has been planted centuries ago which is being still fuelled. “Today Article 35 A is being used as a tool to divide people of State. But in this war of religion, region and law only a poor is getting crushed.
(The author is Publicity Secretary J&K Congress Committee State Coordinator R&D AICC.)
(The views of the author are personal)