Art 35-A: Discriminatory in nature

Dr Ganesh Malhotra

On May 14, 1954, the President of India issued an order called the Constitution (Application to Jammu and Kashmir) Order 1954. It came into effect immediately and superseded the Constitution (Application to Jammu and Kashmir) Order 1950.
Besides carrying out many modifications and changes, this presidential order ‘added’ to the Constitution of India, a new Article namely 35A as an amendment to Article 35. The 1954 order states it is being issued “in exercise of powers conferred by clause (1) of Article 370 of the Constitution, with the concurrence of the Government of Jammu and Kashmir”. No amendment in Indian Constitution can be done without Parliament without following procedures mentioned in Article 368.
Article 35A was never presented before Parliament of India. Unlike other amendments, it appears in the Constitution as an appendix and is not listed in the list of amendments either.
Article 35-A has discriminated Permanent Residents of Jammu and Kashmir instead of Protecting the Permanent Resident. But it is propagated that this provision is for the protection of Permanent Residents of J&K. This provision has multiplied the miseries of many people in J&K instead of protecting them. The main worst sufferers are:
Women Permanent Residents
Backed by Article 35-A Section 6 as adopted and strictly enforced by the State Government reads: (I) “Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954, (a) he was a state subject of class I or of class II, or (b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to this date” and (II) “any person who, before the fourteenth day of May, 1954 was a State Subject of class I or of class II and who, having migrated after the first day of March, 1947, to the territory – now included in Pakistan, returns to state under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State”.
As for Sections 8 and 9, the former gives the State Legislature the right to define Permanent Residents and the latter empowers the State Legislature to alter the definition of Permanent Residents.
All the laws framed by Maharaja Hari Singh or subsequent Government were Gender neutral. They defined the Permanent resident not Male permanent resident or female resident. But later on notwithstanding anything in PRC act the concept of “Valid Till Marriage” got introduced in it without any legal sanction.
Up to 2002, the Revenue Department was issuing Permanent Resident Certificates (PRCs) to the female residents of Jammu and Kashmir with the endorsement as “Valid Till Marriage”. This became ground for a petition before the State High Court about 15 years back whereby selection of a doctor was challenged on the plea that she was married to non state subject.
The judgment of Single Judge whereby selection was quashed was challenged in the Division Bench of J&K High Court and keeping in view the involved legal issue a Full Bench comprising of Justice V Jhanji, Justice T Doabia and Justice M Jan was constituted.
The reference before the Full Bench was: “Whether the daughter of a permanent resident of the State of Jammu and Kashmir marrying a non-permanent resident loses her status as a permanent resident of State, to hold, inherit and acquire immovable property in the State?”
In view of the majority opinion, the Full Bench in a case titled Jammu and Kashmir Versus Dr Sushila Sawhney and Others held that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of State of Jammu and Kashmir.
Though the State Government initially filed Special Leave Petition (SLP) in the Supreme Court against the verdict of Full Bench of J&K High Court but later withdrew the same after making an opinion that it will carry out necessary amendments in the Act governing issuance of PRCs.
In March 2004, an attempt was made by the PDP-led coalition government to bypass the High Court’s landmark judgment. It moved an official Bill after the tough stand of Hon’ble Supreme Court which was passed in a record 6 minutes.
But the Bill was declared “defeated” in the Legislative Council. The main reason was that the bill had created a storm in Jammu and at the national level as anti-women, reactionary and out-dated.
J&K High Court on four occasions delivered judgments aimed at ensuring gender equality. The judgments were unambiguous and were hailed by one and all.
Unnecessary confusion has been created to implement the judgement of Hon’ble High Court in Dr Susheela Sawney case and thereafter. After 15 years of Judgement the situation seems to be at the same point. Despite clear Judgement of Hon’ble High Court and law position a Committee has been constituted to deliberate on matters which are already settled. Central Govt cannot intervene because of Article 35-A.
If a woman marries outside the state:
When women belonging to the state of Jammu-Kashmir marry outsiders, they cannot settle in the state even if the circumstances so demand.
A man from another state marrying J&K a woman cannot get PRC, hence none of the associated benefits. Which means he cannot buy land, cannot apply for a government job, his children cannot study in state-run professional colleges and institutes.
This means if a woman marries outside the state, she is virtually forced to leave the state and settle elsewhere. Earlier, such women used to completely lose the ‘permanent resident status’. But still her off springs and spouse don’t get PRC which is not there in case of male.
Now questions are:
*     When Permanent resident law is gender neutral then how discrimination is being allowed to women in the name of gender?
*     Are there any separate laws for male permanent residents?
*      Whether Article 35-A was introduced to protect Permanent Residents or to discriminate?
*     Is it not Human rights violation?
The most depressing story is that of safai karamcharis in Jammu-Kashmir.In 1957, around 200 Valmiki families were brought from Punjab to Jammu-Kashmir, following a cabinet decision, specifically to be employed as Safai Karamcharis (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. Their children cannot get admission to government-run professional institutes. The educated youth from these Valmiki families are only eligible to be appointed as safai karamcharis only.
The educated Safai-Karamcharis already working in Jammu Municipality now qualify for further promotions. But as they can only be employed as sweepers, there is no hope. These Safai-Karamcharis can vote for Lok Sabha elections, but not for State Assembly or municipality elections.
The colony that was allotted to Safai Karamcharis to live in (Valmiki Colony, Gandhi Nagar, Jammu) has not been regularized till date.
Now questions are:
*     Are these the standards of Human rights being claimed?
*     Don’t these people and their Children have right to grow and develop?
Gorkhas were employed in all the ranks of army of Maharaja Ranjeet Singh and then Maharaja Gulab Singh. Their families settled in Jammu and Kashmir  more than 200 years ago. They are around one lakh people. They have State subject granted by Maharaja but now they are not granted PRC on illogical grounds. This is due to Article 35-A giving State Government free hand to discriminate even the Permanent residents of State.
Now the point is that if Article 35-A was enacted to protect the rights of Permanent Residents of Jammu and Kashmir then how discrimination is being there with said people like women, Valmikis or Gorkhas and many more. If Article 35-A provides a shield to Government of J&K to discriminate the Permanent Residents of Jammu and Kashmir then why it shall not be abrogated with immediate effect. These points need to be given a serious thought to protect the Permanent Residents of J&K from further discrimination.
(The author is J&K based Political
and Strategic Analyst)