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Daya Sagar
In case Art35A is a genuine feature of Indian Constitution and is in the best interest of the people of J&K, to be specific for those Indian Citizens who are categorized as Permanent Residents of J&K as defined in Section-6 of J&K Constitution, then why is it so that only the Kashmir Valley leadership gets agitated has got agitated after some questions are raised on ‘provisions’ like Art35A and recently after a petition has been filed in supreme court of India by a NGO ? No noticeable reactions have come like the one that have come from Kashmir valley leadership (including PDP leadership) from other regions of J&K. Rather people (Permanent Residents) of regions other than Kashmir have been found welcoming such questions ? Art 35A has been added as a new article after Art 35 in the Constitution of India by an Order of the President (C.O 48 of 14 May 1954) . Those who may like to read its text in detail will have to see Appendix-I to Constitution of India where only it is available with other items included in C.O 48 since it is not included in the main text of Constitution of India.
National Conference President, Dr Farooq Abdullah, has been quoted as having said on this 7th August while talking to media in Srinagar : “It {Art 35A) is not just a Kashmir centric issue as they (BJP & RSS) are trying to project it. It was very important to discuss the issue of Article 35A and its implications on the State, and all its three regions-Jammu, Kashmir and Ladakh, so that people understand as to why we are against its abrogation, which gives us the basic right and scrapping it will take away that basic right from us .Big responsibility on shoulders of those who have always worked in direction of keeping the state away from regional frenzy politics. It was Maharaja Hari Singh who in 1927 had brought in the ownership laws of the state, for welfare of state subjects”. Dr. Farooq Abdullah has gone to the extent of warning BJP and RSS of the dangerous consequences if Art 35A is tinkered with saying that “The Amarnath land row agitation in 2008 was nothing as compared to the explosive repercussions it ( Art 35A issue ) is bound to create in the State”. Before this, while she was in Delhi, J&K Chief Minister Mehbooba Mufti ji had also said on 28th July that she has no hesitation in telling that any misadventure ( chaed-chchaad) with Art35A, that is also before supreme court these days , will leave no one ‘there’ ( surely she meant Kashmir Valley) to ‘shoulder’ the National Flag.
In case Art35A is a genuine feature of Indian Constitution and is in the best interest of the people of J&K , to be specific those Indian Citizens who are categorized as Permanent Residents of J&K as defined in Section-6 of J&K Constitution, then why is it so that it is only the Kashmir Valley leadership that gets agitated has got agitated after some questions are raised on ‘provisions’ like Art35A and when recently a petition has been filed in supreme court of India by a NGO ?. No noticeable reactions have come like the one that have come from Kashmir valley leadership from the ‘permanent residents’ belonging to other regions of J&K, why ?
One would ask do the contents of the text of Art 35A have different provisions for the Permanent Residents of J&K in Kashmir Valley and for those in Jammu or Ladakh regions ? The simple answer is no, the text has same meaning for all. Then why reactions & opinions of Kashmir Valley leadership have been different than that of people from Jammu / Ladakh regions ? Going by the behavior of the political leadership of J&K that has so far held the reigns of governance in J&K and have been enjoying the first confidence of New Delhi Governments, it could be said that the constitutional provisions what they (Kashmir Valley leadership in particular) call “special for the Permanent Residents of J&K (State Subjects of Class-1 and Class-II particularly and some who may fall with in the provisions of erstwhile Class-III category of pre 1947 times ) have been used less for the good of the Permanent Residents of J&K and more for showing that J&K state is constitutionally at some distance from India as compared to other Indian states .
Dr Farooq Abdullah has advised ‘his’ people and other valley centric leadership to come on one platform to discuss the issue of Article 35A and its implications on the State, and all its three regions-Jammu, Kashmir and Ladakh, so that people understand as to why “ they” are against its abrogation, which gives the basic right and scrapping it will take away that basic right from people of “J&K”. Dr. Farooq Abdullah has also attributed the spirit behind the contents of 35A to the State Subject Law of Maharaja’s times but will he also tell those who oppose his opinion why have not the Governments in J&K also taken a leaf out of Maharajas times where under the provisions of rules for class –III state subjects a person who would acquire some property by an izajatnama from the government and after staying for atleast 10 years in J&K by entering into riyayatnama one was granted status of state subject of class-III by Maharaja Government and the Government of J&K / J&K Legislature has not done the same for the 1947 refugees settled in J&K who are staying on and cultivating lands in J&K for more than 6 decades as allotted in terms of Notification No.578-C 0/5 1954 of 7.5.1954 ( State Cabinet’s decision No. 9578-C of 1954) to be possessed and cultivated by them? Even Sections -8,9 of J&K Constitution have not been used judiciously so far . The present Permanent Resident law that violates the human rights as well as fundamental rights of a woman permanent resident of J&K taking protection from Art35A has not been amended so far although Dr. Farooq Abdullah has himself said in a TV interview that he wants it to be amended but his party colleagues do not agree . Will Dr. Farooq Abdullah tell why his party colleagues do not Agree ?
A petition regarding Art 35A of Constitution of India is pending before Hon’ble Supreme Court of India and we should wait for the decision of Supreme Court as regards the questions raised on the validity of this article in view of the ‘question’ that Art 35A has been added as new article in Constitution of India after Art35 by an Order of the President { C.O 48 of 14 May 1954 – Constitution ( Application to Jammu & Kashmir) } Order of 1954. The controversies and threats as have been aired on 28th July by Mehbooba Mufti Ji Chief Minister of J&K while she was in Delhi and this 7th August by Dr. Farooq Abdullah ji while addressing media at Srinagar (surely making indirect reference to a petition regarding validity of Art35A of Constitution of India still pending before a 3 Judge bench of Supreme Court of India since 17th July 2017) are not fair. More particularly so senior leaders in a way throwing challenges on the apex court is very disturbing. Since Art 35A is not included in the main text of Constitution of India those who may like to read its full text , will have to see Appendix-I to Constitution of India where only it is available with other items included in C.O 48 .
3 times former Chief Minister of J&K and Member Parliament Dr. Farooq Abdullah has among other things told before media on this 7th August “ aaj yeh bahut jaroori tha ke 35A par hum apas mein milein aur is pe baat karein , kyon ke yeh galat fehmi main aap logon se nikalna chahta hoon – logon se neekalna chahta hoon ,yeh sari riyasat ko affect karne bala hai ,jammu kashmir aur ladakh, is liyae yeh bahut jaroori hai ki log is ko samaj sakein ke ham 35A ko abrogate karne ke liye kyon khilaf hain.. is ko hatane ke kyon khilaf hain, kyon ke ye h hamari buniyadi cheej ko hatana chahtea hain … what is this Article 35A for, protecting the people of state, whether they are from Jammu.. Kashmir or Ladakh….. to prevent others coming in to dilute their culture …. is liye bahut jaroori hai ki we should go to the people an put it before them because they are the masters… agenda of BJP & RSS is basically to erode the autonomous structure of State and we as a ‘united front’ are going to bring this to the people so that they know the fall out of this . …. When it will come to ‘that decision’, You will see this mass uprising… do not forget when that Amarnath yatra thing happened, overnight ,35A will be far greater revolt, I wonder whether they will be able to hold ..”
Politicians must wait for the final out come of the petition before Apex court. But still there is enough that the local leadership and local government can do for mending the inter regional divides and communal considerations that are taking away the peace and harmony from the lanes of J&K due to such like controversies. The Kashmir valley leaders have talked of the common good and identity of the people of J&K belonging to Jammu, Kashmir and Ladakh regions but they must also sense the reasons why the people {“Permanent Residents of J&K”) belonging to Kashmir Valley and other two regions of J&K have in general reacted differently to the questions raised on Art 35A of the constitution of India and petitions made before the High Courts / Supreme Court even when this article gives the Indian citizens who are permanent residents of J&K a privileged status (some have now started saying special status) , irrespective of the region to what they belong, as compared to Indian citizens who are not.
Dr. Farooq Abdullah has called his people and “united front” to go in the J&K masses and tell the goods of the provisions contained in Art 35A for the people of J&K as permanent residents of J&K.
In case the said article has not been more used for only political gamesmanship in Kashmir valley then Dr. Farooq Abdullah, Mehbooba Mufti, Prof Soz, Mr. Karra should tell the people why some very legitimate issues have not been taken care inspite of their being provisions in Constitution of J&K , way outs with J&K Governments (present & past) and even in the light of advisories from Apex court like the one as made for 1947 West Pakistani Refugees in Bachan Lal Kalgotra vs State Of Jammu & Kashmir And Others on 20 February, 1987. Some other rightful people but otherwise treated could be also quoted like, over 200 safaikaramchari families who were invited from Punjab by J&K Government some where in 1957, the violation of the human rights of the woman hereditary permanent residents ( State subjects), 5300 families of POJK DPs 1947 who are staying in other Indian states, inadequate professional / qualified staff in J&K Medical Colleges and super specialty hospitals since non PR can not join.
35A on paper does favour the citizens of India who fall in the category of Permanent resident of J&K. The definition of Permanent Resident of J&K has been drawn by taking leads from the State Subject Law of Maharaja Hari Singh times . In Maharaja’s times there was scope for accommodating outsiders with special / and special merits as State Subject of class- III and the like. Dr. Farooq Abdullah too has referred to Maharaja Hari Singh for the origin of Permanent Resident of J&K provisions and the special considerations accorded in J&K Constitution to Permanent Residents of J&K in Independent India. In Constitution of J&K also scope for betterments / corrections changes was kept in Section-8 and Section- 9 but there use has not been made for making corrections/ relaxations. 1947 West Pakistan refugees ( Wadhwa Committee of 2007 placed the families around 5,764 consisting of 47,215 persons in 1947) are possessing and cultivating lands in J&K as allotted in terms of Government of Jammu & Kashmir Notification No.578-C 0/5 1954 of 7.5.1954 (State Cabinet’s decision No. 9578-C of 1954) for over six decades now but they have not been granted Permanent Resident of J&K Status and hence can not enter state legislature, can not join J&K Government service, can not purchase land in J&K , can study in government professional colleges . Those leaders who are attributing the PR related laws to Maharaja’s times need to reply why WP refugees have not been given status of Permanent Resident like Class-III State subject of Maharaja , which could be done without any reservations. People outside Valley have never opposed such proposals and it is being alleged that since the WP Refugees are non Kashmiries and residing only in Jammu region they have not been accommodated. Will the “Farooq Abdullah’s United Front” ask the present government to do corrections?
5300 Families of POJK DPs 1947 who are staying in Indian states other than J&K have been disowned by J&K government by an act of J&K legislature and have been excluded from the scope of one time settlement amount that is being given to POJK DPs 1947 under Prime Minister’s development Package 2015. What has been the logic behind this is beyond any logical thinking. Even the State Subjects of Class-I and Class-II have been disowned by State Governments and central government and are treated as valid permanent residents of J&K. The Kashmir Valley leadership is talking of what special provisions for permanent residents of J&K ? Are the POJK DP families discriminated since majority of them are staying outside Kashmir valley and are not belonging the religious faith that the majority of Kashmir valley holds? WillFarooq Abdullah’s United front prove that Art35A is truthfully used for the J&K State Subjects of Pre -1947 days?
Over 200 families of Safai Karamcharies were invited in 1957 by the then Prime Minister of J&K Bakshi Ghulam Mohamed for meeting the needs of Jammu Municipal Committee and they are here since then. They have been permanent resident rights worth only working as safai karamchari . How painful is it , they are working since more than 60 years for the health and hygiene of “permanent residents of J&K” but their wards can not take to higher studies nor can they chose a better career. Art 35A does not prevent state government / legislature for giving them honorable living and better civic status, why have they not been granted PR status is the question Kashmir valley centric leadership must reply .
Human Rights of women / girl child in J&K are mercilessly violated under the present state subject laws/ rules . A female Permanent Resident of J&K ( PR of J&K ) has been stripped of her right to even chose a life partner of her choice. She can not pickup her life partner from Punjab or UP in case he is a non permanent resident of J&K and in case she dares to do so it has to be at the cost of her children and fiancé remaining non permanent residents of J&K for ever . How does Dr. Farooq Abdullah say that in case Art35A goes the identity and rights of permanent residents of J&K will be eroded when with Art35A in place still even the ‘permanent resident of J&K “ Woman in J&K are facing very brutal human rights violation ?
How will making a correction in this regard regarding the Permanent Resident Rights of the ‘JK” woman with affect will affect the identity of J&K? Will Farooq’s e “United front” convince the present government / legislature for applying corrections? It is not out of place to mention here that Dr Farooq Abdullah has himself said to Barkha Dutt in a TV interview in December 2013 that he personally is for making a correction in this regard (Fundamental Rights - better to say also Human Rights like making a choice of her life partner - of even a women / girl child who may be descendent of erstwhile Class-I or Class-II State Subject of J&K / descendent of a Permanent Resident of J&K as per section-6 of J&K Constitution that in J&K are mercilessly violated under the present state subject laws/ rules ) but his ‘people’ / party people do not agree ( he can not tell why do they do not agree). Will he now prevail upon his people ? Otherwise need has come for looking into possible means for making some corrections as regards irrational and unfair discriminatory laws in J&K keeping in view that the local Kashmir centric leadership will not make mends so easily, will they do it now ?
Many may not be knowing that in Independent India only 21 soldiers have been decorated with Param Vir Chakra and out these greats 15 soldiers are those who have laid down their lives fighting on LOC/ IB in the Indian State of J&K and were Non Permanent Residents of J&K .Even families of these soldiers decorated with PVC and who have made extreme sacrifices can neither have a house of their own to stay in J&K nor their children / family members can join J&K government service as well as J&K Government rum medical or engineering college since no local government has cared to accommodate them as Permanent Residents of J&K or even issued any special executive orders relaxing local restrictions in service / admission to J&K government institutions for their families. How would extending such gestures to a few like PVC decorated soldier families would change the ‘demography’ of J&K as is feared by some Kashmiri leaders ( to be specific even ‘muslim majority’ character of J&K ) or dilute the identity of people of J&K ( Kashmiries) is not understood . What special rights the people of J&K have when they can not even honor those who lay down their life for J&K people inspite of the fact that it could be done by executive orders and / or by using Sections-8 and 9 of J&K Constitution ? Will Dr. Farooq Abdullah reply this ?
Government Medical Colleges in J&K do not have adequately experienced and qualified faculties of super specialties and even the doctors from other states are not recruited due to local Permanent Resident related laws that could be amended without any difficulty but are not amended , why ?. But it has not been done simple to show that J&K is distantly related to India. Even Super Specialty Hospital attached with Jammu Medical College has become a white elephant and patients have to rush to outside state or local private clinics . Why relaxations are not made and Permanent Resident law is retained as a block in the way for taking welfare actions in the interest of common people of J&K? What special is this? In case non permanent resident professors can be recruited in Jammu University why can not non permanent resident doctors be recruited in medical colleges simply by issuing executive orders for what the provisions/ way out exits constitutionally as well ? Here too it could be alleged that the powerful Kashmir valley leadership has used the PR law or existence of Art 35A just to project that J&K is distantly related to India. Why not make corrections atleast now?
Even when Apex court has made some observations and even suggested for making corrections through executive and constitutional measures but that has not been done even after lapse of nearly 3 decades. Apex court has in a way expressed helplessness for granting relief to 1947 refugees from West Pakistan pointing out that Art 35A allows J&K Govt / Legislature to discriminate between Indian citizens by violating even fundamental rights as contained in Part III of COI while delivering a judgement in Bachan Lal Kalgotra vs State Of Jammu & Kashmir And Others on 20 February, 1987
With due regards to ultimate opinion of the Apex court it could be said that the subject matter needs more close examination as regards the ‘genuineness of existence of Art-35A’ than the contents of this article . President of India drawing authority from Art 370 (1-d) of Constitution of India to add some new article in the Constitution of India like Article 35A and issuing the Constitution Application ( to Jammu and Kashmir ) order of 1954 C.O. 48 containing Section-4(j) adding a new Art by the name Art 35A after Article 35 in constitution of India in a way puts the very existence of Art 35A and its birth under a question mark .
Art35A had been so far put under question mark for it’s being unconstitutional and void on the ground that it damaged the basic structure of the Constitution by incorporating some provisions unfair to some citizens of India in the shape of Art35A but now the question is on constitutional validity of the manner in which Art 35A has been added in the COI as a new article .
Hon’ble supreme court has so far held the laws and provisions made in J&K that discriminate between citizens of India who are Permanent Residents of J&K and those who are not PR of J&K valid for survival under the cover of ‘Art35A’ of Constitution of India even if they violate the fundamental rights of some other Indian citizens as granted in part-III of COI .
But the question that was initiated by persons like the writer in 2009 is a question on the constitutional legitimacy of even the birth of Art35A and there exist all reasons for taking up this issue before the Apex Court for consideration by a larger Constitutional bench pleading that Clause (1) of Art 370 of Constitution of India confers no power on President of India to amend the Constitution of India simply with the concurrence of the Government of the State of Jammu and Kashmir so as to add a new article in the Constitution of India by the name Article35A after Article 35 of COI since such action is an amendment of the COI and only Parliament of India can do so by using the constituent power vested in Art 368 of Constitution of India. Hence before discussing good and bad of the text of Art-35A, the first need is to examine whether this Article even constitutionally exits? Apex Court has on 17th July 2017 already referred references in Writ Petitions (Civil) 722/2014 to a larger 3 Judge Bench on validity of Article 35A. Hope the constitutional technicalities will surely attract the attention of the apex court worth referring to a larger constitutional bench the text of C.O. 48 where it says :- “After Article 35, the following new article shall be added, namely:—35A.”