Article 35A: A Humanistic Perspective

Dr Shreeya Bakshi, Ajay Sharma
“When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us”.
Dr. B.R. Ambedkar
This saying of Dr. Ambedkar is very true in case of Jammu and Kashmir (J&K). In the erstwhile state of J&K, there were many sections of people who were devoid of their rights be it legal rights, fundamental rights or even human rights. The sections who are bereft of their rights are the West-Pak Refugees, Displaced Persons of Pakistan Occupied Jammu Kashmir (POJK), Valmikis, Gorkhas and off course the daughters of the state.
The people who got displaced from West Pakistan to the Indian state of Jammu and Kashmir in 1947 are known as West Pakistan Refugees. They have been living in J&K for last 73 years. Along with J&K, they moved to Delhi, Mumbai, Surat and many other places of the country. In the rest of the country other than J&K, they were rehabilitated with a number of welfare measures such as allotment of houses, jobs etc. Today, they are the citizens of India, enjoying each and every right and privilege that the Constitution of India confers on all Indians. Their situation is far much better than those who decided to settle in J&K. Around 5,764 families consisting of 47,215 persons migrated from West Pakistan to different areas of Jammu Division in 1947. More than 80% of West Pakistan Refugees population belongs to the Scheduled Caste (SC) category. It is very unfortunate that they could not avail the benefits of various social welfare schemes launched by the State Government for the upliftment of SC population because they were not having Permanent Resident Certificate (PRC).
Permanent Resident Certificate (PRC) was that certificate which used to be issued to all the residents of J&K. And who were the permanent residents of J&K was defined by the members of State Legislative Assembly using their power granted to them (MLAs) through Article 35A. The Presidential order of 1954 stated that those who migrate to India ten years prior to 1954 i.e., in 1944 would be considered as permanent residents of the state of J&K along with some other clauses. So, West Pakistan Refugees were not granted PRC. Due to the non-availability of PRC, they could not get government jobs, were not entitled to scholarships, could not cast their vote in the local bodies and State Assembly elections, their children could not get admissions in any state-run professional colleges and even could not avail their reserved caste category benefit.
In 1947, after the attack of Pakistan on Poonch, Mirpur and Muzaffarabad, on Oct 22, when thousands of people were killed and massacred brutally, only 31619 families could register themselves for ex-gratia with the office of Provincial Rehabilitation Office. Out of total registered families, 26319 were settled in J&K where as 5300 families were settled outside J&K. These 5300 families were disowned by then Government of the erstwhile state of J&K. They were never given any relief or not even granted benefit of any package announced by Centre or State Governments.
In the year 1957, there was hartal of sanitation staff going on in the J&K. There became severe chances of epidemic breakout in J&K. At that time, to avoid such breakout, around 272 Safaikaramcharis were brought from Rajasansi, Punjab to J&K, following a cabinet decision, specifically to be employed as Safai Karamcharis (sweepers). They were living in J&K for long six decades but they were not entitled to any kind of Government jobs, scholarships, seek technical/professional education in state run institutions, own or buy land, could not enjoy their reserved caste category benefit, no financial assistance from banks and so on. The list of their problems is endless. These Valmikis suffered in J&K due to non-availability of PRC. These families when brought in J&K agreed to work here after being promised that the ‘permanent resident’ clause would be relaxed in their favour. But they are not given the status of ‘permanent residents’ of Jammu and Kashmir even after 60 years of their stay in J&K. Because of not having Permanent Resident Certificate, they are struggling hard for their survival in the state of Jammu and Kashmir. And the only job which they were entitled to in J&K was that of Safaikaramchari as mentioned in Rule 35B of the State Services Rules of erstwhile state of J&K.
Gorkhas were settled in J&K since 18th century. Their population is around one lakh and is spread across J&K, including Kashmir Valley. They are well known for their bravery and courage. Majority of them were soldiers having fought in the ranks of Maharaja Ranjit Singh of Punjab, whose commander-in-chief was Gulab Singh of Jammu. The Gorkhas of J&K took part in World War I and excelled in the battle of Beho Beho and Kilimanjaro in East Africa. Colonel Durga Singh- a Gorkha of J&K, received a gallantry awards and a jagir with the honour of “Sardar Bahadur” for showing extraordinary courage against the Germans. Though the Gorkhas have made supreme sacrifices for the integrity of India and the safety of J&K but their miseries have increased manifold since independence. Despite all these sacrifices, the Gorkhas in J&K faced troubles in the state in their day to day life because the state has not issued them Permanent Residence Certificate (PRC). Due to the lack of PRC, they are not entitled to government jobs or admission in the educational institutes in J&K could not avail scholarships and suffered the same handicap as being faced by Valmikis and West Pakistani Refugees.
A clear cut discrimination and distinction between the daughters and sons was in existence in the state laws of J&K. The state laws of J&K very clearly states that if a male of the state marries a female outside the state, the female as well as the offspring of that couple will be granted the status of permanent resident of the state. On the other hand the state very proudly declares, under the umbrella of the laws (Article 35A) of J&K that if a female of the state marries a male outside the state, that male and the off springs of the couple will not be granted any laws in the state of J&K. Prior to 2002 judgment of J&K High Court, a stamp of ‘Valid Till Marriage’ was put on the PRC of daughter of J&K. This means that if a woman of the state marries to a non- state subject loses each and every right in the state of J&K. She loses her right to inherit property, right to seek employment in the state, right to vote in the state, right to buy any land in the state, etc. But after a full bench decision in 2002, it was declared that woman of the state if marries to a non-resident of the state, she will not lose anything and will hold all the rights and the stamp of ‘Valid Till Marriage’ will not be there on her PRC. This was also a ‘Half Judgment’ as daughter of the state was not at all able to get equal rights for her children and spouse. And hence was suffering from these legal lacunae for years together. Policies, schemes, approaches like Gender And Development (GAD), Women And Development (WAD), Empowerment, Equality, Equity etc., all use to become useless, purposeless and fruitless in J&K because here in J&K a worst form of violation of human rights is visible when the state machinery itself discriminates between men and women of the state.
Before August 5 & 6, 2020, all the above discussed sections of people be it West Pakistani Refugees, POJK DPs, Valmiki Samaj, Gorkhas and Daughters in J&K were devoid of their basic Fundamental Rights like: Article 14, 15, 16, 19, 20 and 21. They did not have access to any facility which a resident of the J&K enjoyed. No Political party, no politician, no media house, no intellectuals, no NGO’s, and no human right activists ever cared about them. There was a blatant misuse of political power in J&K for long seven decades. The worst form of treachery is done to the people of all these sections.
It is only through the new Domicile Rules of 2020, these sections are getting their recognition. It is only after the abrogation of Article 35A these sections are now issued Domicile Certificate and hence are realizing and feeling the true meaning of breathing freedom. But unfortunately, even today this whole case of Human rights violation is seen from a political perspective. Even today people are debating in favour or against the abrogation of the inhumane Article 35A. Those who are against the abrogation of Article 35A know it very well that how it created obstacles in the growth of many sections but even after knowing all these implications they are opposing its are abrogation. It seems as if the politics is overpowering the humanistic concerns and political affiliations have become more important than being humans.
(The authors are assistant Professor Department of Sociology and Social Anthropology, Central University of Himachal Pradesh & Jammu Kashmir Study Centre)