The Article of Discrimination: What is Article 35 A? Here's why it should be scrapped
   25-Feb-2019


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. It empowers the Jammu and Kashmir state's legislature to provide special rights and privileges to those defined permanent residents. Bypassing the Parliament, Article 35A was added to the Constitution through a Presidential Order i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India on May 14, 1954. Article 35A is an example of the abuse of Article 370.
 
Article 35A was an amendment in our Constitution without the involvement of India’s Parliament. It was a blatant 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”.
 
What is Article 35A?
 
In an order called, the Constitution (Application to Jammu and Kashmir) Order, 1954, after Article 35, the following 35A was added:
 
“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."
 
Besides making many modifications and changes, this order 'added' a new "Article 35A" to the Constitution of India. Addition or deletion of an Article amounted to an amendment to the Constitution which could be done only by Parliament as per procedure laid down in Article 368. But, Article 35A was never presented before Parliament. This meant the President had bypassed Parliament in this order to add Article 35A.
 
Discriminatory Article
 
Article 35A has denied 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’.
 
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.
 
It facilitates the violation of the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property, if the woman marries a man that is not a permanent resident. Therefore, her children are not given Permanent Resident Certificate and thereby considering them unfit for inheritance – not given any right to such a woman's property even if she is a permanent resident.
 
Children of non-state subjects do not get admission to state colleges.
 
It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste and Scheduled Tribe people who have lived there for generations.
 
It ruins the status of West Pakistani refugees. Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu and Kashmir, they cannot enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu and Kashmir.
 
It gives a free hand to the state government and politicians to discriminate between citizens of India, on an unfair basis and give preferential treatment to some by trampling over others, since the non-residents of the state are debarred from buying properties, getting a government job or voting in the local elections.
 
Victims of Article 35 A
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.
 
Scheduled Castes/Scheduled Tribes:
 
Article 35A facilitates violation of fundamental rights of Scheduled Caste and Scheduled Tribe people who have settled in J&K for generations. 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 a victim Mangat Ram while explaining the plight of his community.
 
Reference:
 
1. Organiser Archives
2. "In first direct salvo, RSS aims legal missile at J-K special status". India Today. Archived from the original on 18 March 2017
3. Bhatia, Prof K.L. (17 April 2014). "Article 35A A Mishmash of the Textual Constitution of India". Archived from the original on 18 March 2017