Reasons to be quiet on Article 35A

Suman K Sharma
Recently, a media person from Kashmir quipped, ‘If the separatists say they don’t subscribe to the Constitution of India, why are they crying hoarse about Article 35A?’ Why, indeed? Not only the separatists, everybody who is anybody in or outside J&K has something to say about the matter. Endless arguments are being made for its retention or abrogation. Leave aside what the 35A votaries in the Valley are shouting from their rooftops, a particularly smart private Civil Services coaching institution has proclaimed on its website, obviously without ascertaining the ground facts, that ‘Repealing it [Article 35A] is likely to impact the cultural identity and economic opportunities of communities like the Dogras of the Duggar region.’ God help the aspirants who seriously take the regurgitations of such self-styled pundits!
The facts first. Article 35A was incorporated in the Constitution of India by a Presidential order in 1954, bypassing the Parliament. Stemming out of the Article 370, which derives its authority from the Instrument of Accession, Article 35A legitimizes preferential treatment to the ‘state subjects’ in employment under the State Government, acquisition of immovable property in the State, settlement in the State and right to scholarship and ‘such other aid that the State Government may provide.’
In 1961, a five-judge Bench of the Supreme Court ruled that the President may modify an existing provision in the Constitution under Article 370. The Court, however, was silent as to whether the President could insert a new article without Parliament’s knowledge. In a writ petition filed before the Apex Court, an NGO, ‘We The Citizens’, has challenged the validity of both the Articles 370 and 35A. A second petition has been filed by Charu Wali Khanna, a native of the State, claiming that ‘Her children are denied a permanent resident certificate, thereby considering them illegitimate.’ The two petitions have been tagged together by a Supreme Court Bench led by Justice Dipak Mishra. It would be eventually for a Constitutional Bench to decide on the validity of the two Articles.
That, by itself, should be the foremost reason to let the issue rest with the keenest legal eagles of the country to mull over and come out with a reasoned and tenable solution to the weighty issues that touch upon our solidarity as a nation state and equity in enjoyment of our fundamental rights. Mind, and not the heart, should have the ultimate say in such matters. At this stage, voceferating one’s personal opinion, however deeply felt it might be, would be like trying to influence the Court – something which is as futile as it is unbecoming of any sensible person.
Secondly, while the argument for retention of Article 35A betokens an unsustainable urge to maintain a perceived uniqueness from the rest of the nation, that for its deletion seeks a justifiable oneness across the country, from Kashmir to Kanyakumari and from Kohima to Jaiselmer. The word ‘justifiable’ is crucial. Inclusivity does not mean wiping out of identity and the privileges that come with it. Don’t those who have permanent residency (PR) in other States of the Union enjoy certain preferences over others? If a native from the Valley is particular about his singularity, so does a Maharashtrian about his. And mind you, the much hyped Article 370, father-and-mother to Article 35A, is itself a temporary provision. Then why should we make it such an earth-shaking, Himalaya-toppling issue, if the highest court of the land is seized of the matter?
Lastly, much is being made of the fear that deletion of Article 35A would throw open floodgates of migrants from other states and rob our youngsters of job opportunities. One could not think of a more humiliating and self-flagellating argument. Since when have we become afraid of competition? Have not we given to the country luminaries like Justice TS Thakur as its 43rd CJI, and General NC Vij as the 21st Army ChIef? Are not our young men and women proving their mettle in the Civil Services exams and in the best professional institutions of the land and beyond? Let, for our own good, the youngsters be exposed to harder challenges. We have seen the results of protectionism and mollycoddling of some sections of the society for more than seventy years. 2018 is not the same as 1927, when Maharaja Hari Singh had to bar the more educated and trained personnel from outside his domain from competing with the simple-minded (read unlettered) Dogras who had been either peasants or soldiers for generations together. The Maharaja is gone for good and so are his times. Now, if the prevailing circumstances demand it, we must have a sagacious and dispassionate relook at the whole affair. Hullabaloo never resolved any issue.
Those who harp on the ‘special’ status of the State would do better to remember that as per a ruling of the Supreme Court, J&K has ‘no vestige’ of sovereignty outside of the Constitution of India and ‘that permanent residents of Jammu and Kashmir are citizens of India and there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world.’
Articles 370 or 35A are not God Almighty’s decrees that cannot be challenged for all times to come. They have served their purpose and the country’s wisest arbiters are now seeing how far they can still be relevant. Rather than raising a din, we should wait and see what conclusion they arrive at.