Victims of Draconian Law: Article 35A

09 Feb 2018 11:23:20

The article is supposed to be an instrument for safeguarding the interests of people living in Jammu and Kashmir. After Partition of India lakhs of people from West Punjab migrated to Indian side. It was natural for the fleeing refugees to enter India from the nearest entry points. For many of them nearest place Indian border that of Jammu. Several thousand people entered Jammu and Kashmir. When they realized that the state authorities were not interested in providing even the minimum relief they decided to shift to East Punjab. It was at this point when State government intervened and requested them to stay in Jammu and Kashmir. They assured the refugees that the government will provide them facilities to settle on the lands bordering Pakistan. The promise was made by none other than the most important leader of ruling party, the National Conference who was then Chief Minister (called the Prime Minister in those days). For seventy years these unfortunate people have suffered difficulties of living in inhospitable lands without any jobs, permanent property, Education for their children and even the voting rights as citizens. In fact if they have not been expelled from the area it is because they serve a very important purpose. They keep vigil on the volatile border and serve as human targets to frequent Pakistani firings across the border. They have been the first victims of invasions and border crossings from the days of Partition. They are citizens of India and can become members of Parliament but not members of Panchayats in Jammu and Kashmir. They lived in these inhuman situations in the hope that someday the government of the state may fulfill the promise made to them decades ago, and grant them the right of permanent residence of the state. But the sudden revelation of the existence of Article 35A, hidden in the tail end of our constitution was a rude shock for them. This article has dashed their hopes.


How can any civilized and democratic state deny status of permanent resident for people living continuously for nearly three quarters of a century?  It is here the Article 35A come to the rescue of the ruling class of Jammu and Kashmir.  According to the law enforced in the state any person who has migrated to Jammu and Kashmir before 1944 cannot be granted the right for permanent residence because only those residents who have obtained PR by way of State subject certificate issued by the Maharaja ten years before the promulgation of Constitution of Kashmir. Since West Pakistan Refugees have crossed to India three years after the date cannot be given the right of PRC of the state. Rulers of Jammu and Kashmir have been claiming that they have only followed the law which was prevailing in the state during the Maharajas time. Nehru believes that the National Conference Government is going to rationalize it for betterment. To quote Nehru, “now they want to vary the old Maharaja's laws, to liberalize it.”  But in the name of liberalization the Jammu and Kashmir state has made even harsher. Maharaja’s law allowed non state subjects to become the state subjects if there services were needed for the public good. But in laws under Article 370 even the President of India may be denied a place or land for official purpose. Under the authority of  Article 35A  rulers of the state get arbitrary powers to deny a small piece of land for  memorials  of heroes who have laid their lives for the country and the people unless the hero's have a PRC.

(Residents of the Valmiki Colony discuss community issues in Jammu on Friday. Tribune Photo)

There is another breach of trust. In 1956 Another Chief Minister Bakshi Ghulam Mohammad Invited 206 families of Dalit sweepers from Punjab to Jammu and Kashmir to help the state in major sanitation crisis. The sanitary staff of most of the towns in Jammu and Kashmir was on a long strike. The sweepers from Punjab were promised that they will be rehabilitated in the state as permanent residents and jobs will, be provided to their sons and daughters in the government departments. It may be noted that this promise was made two years after the Presidential Order 1954 was converted in to an article of India Constitution. But repeated requests  all that the poor Valmiki community was granted was a conditional Resident certificates, which specially mentioned that it is valid  for getting  the job of a sweeper only. The number of the people is around 15-20 thousands were waiting for a justice. Some young members of the second generation in these families have graduated from the colleges and universities outside the State, few of them are even post graduates. Merit has no value in their home state. Here they are just good enough for a sweeper’s job only. In an age when untouchability is a crime, it is being promoted and protected by law of the land in Jammu and Kashmir. It is no longer a social custom among the people here but a tyranny forced upon a helpless community.


The Article 370 enforced by the Article 35A has turned the state of Jammu and Kashmir in to a land of inequality and discrimination for all unprivileged and down trodden classes. How could women be spared? The Article 35A legitimized the gender discrimination by depriving the daughters from inheriting properties of their families. A few years ago a daughter who married a nonresident boy was debarred from inheriting the property of her father. But the decision of the High Court of Jammu And Kashmir delivered on the appeal of a young woman Sushila Sawhney forced the Government to amend the law. But it was only a step forward because daughters of the state even today are facing gender discrimination. A woman married to a non resident can inherit the property of her father but not her children. They lose the right to inherit the property of mother because of her marriage to a non resident. Of course this law does not apply to the sons.


These are direct victims of Article 35A but if we look at broader picture we can realize these twin articles, Article 370 and the Article 35A have wrought immense havoc in the state of Jammu and Kashmir by bringing the entire economy almost to zero growth. Thousands of educated youth are jobless; lakhs do not earn enough to feed their families because there are no jobs available for at least fifty percent of people who need it. There are no industries worth the name. Even the traditional cottage industries are on the downward trend.  No big industrialist is willing to invest, even the local traders shy away from the idea of investing in Jammu and Kashmir. All Industrial Estates set up by the government are defunct. A large percentage of Youth have nothing to do. Those who do not leave the state in search of jobs outside the state fall in the web of terrorism.  Article 35 A has not only put obstacles in the path of good governance but has  created an economic stagnation also. 


[This article is an extract from the book “Article 35A – Face The Facts” authored by Sh. Jawahar Kaul. Further chapters of this book will be covered later in a series.]


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