Article 35 A

The date 6 August 2018, has been hanging like the sword of Damocles on the heads of the citizens of Jammu and Kashmir, across the religious, regional, ethnic and linguistic divide. On this date, the Supreme Court of India is to hear Public Interest Litigations on the Article 35A dealing with permanent residents of Jammu and Kashmir. In 2014, immediately after the BJP came into power at the center with Narendra Modi in the saddle, a New Delhi-based NGO, ‘We the Citizen’ filled a PIL demanding to scrap of Article 35A of the Indian Constitution. To strengthen the demand of scrapping the said article three more petitions were also filed challenging the Article, these were subsequently clubbed with one filled by the NGO, ‘We the Citizens.’

It is more than obvious that the inspiration behind the PILs has been Arjun Jaitley, one of the important ministers in the Modi government. Denouncing Article 370 of Indian Constitution, as an “instrument of oppression and discrimination against Indian citizens” in 2013, he challenged Article 35- A in an article and on microblogs the Facebook and the Twitter and called it as “discriminatory and violative of fundamental rights. Article 35A was inserted in 1954. On a bare reading, it violates the basic structure of the Constitution. I wonder if its constitutional validity will be challenged at some point of time.” The intentions are malafide in as much as they politically motivated aimed at changing the demography of the state.

Since, both the Articles have been incorporated in the Constitution of India after following the due process and lots of debates and deliberations in the concerned forums, propriety demands that Government of India should defend the Article 370 and 35A to every syllable and punctuation mark. Ostensibly, it does not seem happening so, that has become the cause of worry- the worry has got doubled after the State was brought under the Central Rule. The question that haunts the public mind, when the time is tick-tocking   fast for the next date of hearing has been that if the Raj Bhavan administration will gothewhole hog to defend the Article that armorsthe 91-year old the State Subject Law- now rechristened as Permanent Residents Law. It would be pertinent to mention, notwithstanding the State suffering a temporary division after the birth of Ceasefire Line 1948, 1927, State Subject Law remained in vogue on both the sides of the divide.

For the understanding,the importance of protecting and perpetuating the Article 35A to the people of Jammu and Kashmir, on our side of the dividing line one will have to fillip through the leaves of history.‘The first statuary measure to define a hereditary state subject was taken by order of the Maharaja Hari Singh issued under circular PS 2354 dated 31 Jan 1927. The term hereditary state subject was defined as under:

“Hereditary State Subject will be held to mean and include all persons born and residing within the state before the commencement of the reign of His Highness the Late Maharaja Gulab Singh Bahadur and also the person who settled therein before the commencement of Samvat 1942 and have since been permanently residing therein.”

The State Subject Law ‘confers rights to the citizens of the state in respect of their exclusive claim to theacquisition, sale, lease, mortgage of immovable property, claims for service and scholarships, allotments of housing plots, adult suffrage, membership of the local bodies, eligibility  for the benefits under  self-employment.’

Enumerating the benefits that accrue to people of the Stat being a citizen of India, former Law Secretary, Late Ghulam Shah in his book ‘State Subjectship In Jammu and Kashmir’ candidly observes, ‘These political rights and privileges of the permanent residents of the State have never been of  significance to a common man living in the state who has neither exhibited any interest, in the abstract proposition  of his eligibility to become President Or Vice President of India….but it cannot be gainsaid that every resident of the State rich or poor irrespective of his or her age, education has been definitely attracted towards the concept of Permanent Residentship…has infused in him impression that the state Subjectship is shield of his immovable property.’ The overwhelming majority, in fact, every individual is emotionally attached to this law, it has become part of their psyche,and it has giventhem a sense of security. There is need to strengthen this sense of security in people if it is allowed to etherize from the public mind that obviously does not augur well for a society already is caught up in the caught in the morass of uncertainties and vulnerabilities.

The legal dynamics of the abrogation of Article 35 A has been debated, discussed and written by A. G. Noorani in almost 5000 words article ’35A Is Beyond Challenge’ on 13 August 2015 issue of this newspaper. Noorani very rightly points out that  ‘the 51-page petition filed by “We, the Citizens” in the Supreme Court on 23 July 2014 reeks of emotive politics, factual errors of the crassest kind, and far-fetched argument which are manifestly absurd.’

The attempts to change the demography of the state, by abrogating the Article 370 and the State Subject Law has also international dimensions. In as much as Article 370 with its proviso temporary and transitory hadalso got necessitated because Kashmir Dispute was on the UN agenda. Cabinet Minister, N. Gopalaswami Ayyanger while presenting the Article (then draft Article 306 A) had told the Constituent in clear terms that ‘till we are entangled in UN and Kashmir problem is satisfactorily settled the relationship will be transitory.’ Lakhanpal p 310-311). The international dimension is not subject of this column, but it is the international dimension that of course bothers every state subject.

The abrogation of the Article 35A should be a rallying point for all the political formations, to whatever stream of politics they belong to,  even it should be the cause of concern for ‘the Others’ on the political scene. It should engage the attention of the civil societies of all ages and shades of opinion. Any infringement to the State Subject law will adversely affect people across the regional and ethnic dived. It has dangers of dispossessing the citizens of the state of their identity, roots,and land, taking toll of their trade, economy and business and above all changing the demography of the state.

Columnist and Writer

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