What is Article 35A of the Indian Constitution?

Md. Sadiq

11 September 2017

The last few months have seen a new cause for agitation and protest in the Kashmir Valley. These revolve around Article 35A of the Indian Constitution which accords certain special rights to the state of Jammu & Kashmir on the issue of deciding who are its permanent residents and providing them special privileges regarding land ownership, scholarships and so on.

Kashmiris are agitated because they believe that right wing Hindus are bent on destroying this Article 35A in order to erode the special status of the state. Many Kashmiris feel the right wing Hindu nationalists wish to swamp the state with residents from other parts of India and make Kashmiris a minority in their own land.

Kashmiris being a people very conscious of their identity and culture, and the fact that they are a Muslim majority island in the sea of Hindu India, are quick to react to any perceived or real threat to their preserve. The threat of demographic invasion concerns the Kashmiri greatly.

The agreement Kashmiri leader Sheikh Abdullah had made with the government of India and which was subsequently accepted by the elected representatives of J&K revolved around the idea that the state needed special rights and privileges as a condition to the acceptance of accession to India.

The idea was that Kashmiri identity and way of life could be protected and preserved within the greater Indian context.

While Article 370 of the Indian Constitution explicitly confers special status to J&K, Article 35A inserted into the Constitution through a Presidential order on 14 May 1954 specifies another special right of the state of J&K to define and identify who are permanent or true residents of the state.

The following is the relevant text of Article 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."

[Go here to read the complete text of the 1954 Presidential Order]

Protection for Residents

The idea that the residents of J&K needed to be protected was not new but had been put into effect by the Dogra Maharaja of Kashmir, who promulgated the 1927 Hereditary State Subject Order. This distinguished between state and non-state subjects, forbidding the latter from owning land in the state.

The accession by the Maharaja to India on 26 October 1947 was conditional to the extent that only certain state functions were ceded to the Government of India, including defence, external affairs and communications.

This separation of powers and a large degree of autonomy for the state was encoded in Article 370 of the Constitution of India and the subsequent Constitutional Order of 1950. The 1954 Presidential order superseded the 1950 Order and this was accepted by Bakshi Ghulam Mohammad of the Jammu and Kashmir National Conference who was the Prime Minister of Jammu and Kashmir at that time.

On 17 November 1956, the state legislature defined a Permanent Resident (PR) of the state as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has “lawfully acquired immovable property in the state”.

This law has held till recently several individuals and one NGO have challenged its legal validity. Others have called it discriminatory as thousands of residents of J&K have been denied basic rights such as owning property and sending their children to state schools because of the provisions of Article 35A.

India’s first Prime Minister Jawaharlal Nehru has pointed out that the former Maharaja of the state had “Maharaja stuck to this that nobody from outside should acquire land there. And that continues. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places.”

That in short was the genesis of Article 35A; it was a law meant to protect the people of the state from a huge influx of outsiders.

As a result, the state’s Constitution framed in 1956, retained the erstwhile Maharaja's definition of permanent residents, that is “All persons born or settled within the state before 1911 or after having lawfully acquired immovable property resident in the state for not less than ten years prior to that date.”

Effects of Article 35A

These are some of the restrictions imposed by Article 35A:

• No person be chosen to fill a seat in the Legislature unless he is a Permanent Resident of the State

• No person even if residing in the state can vote is he or she is not a permanent resident

• No person who is not a Permanent Resident of Jammu and Kashmir can own property in Jammu and Kashmir.

• No person who is not a Permanent Resident of Jammu and Kashmir can obtain job within Jammu and Kashmir Government.

• No person who is not a Permanent Resident of Jammu and Kashmir can join any professional college run by government of Jammu and Kashmir or get any form of government aid out of government funds.

• Children of non-state subjects do not get admission to state colleges.

However, some effects of this law are discriminatory and anti-humanity as it affects the genuine rights of a large section of people who have been living in the state or once lived there. This is why it has been challenged in the country’s highest court.

In an article written by journalist Ipsita Chakravarty [24 Aug 2017, Scroll.in], it is pointed out that “Three petitions lie at the heart of the present controversy. The petitions challenge Article 35A on three counts: that it discriminates on the basis of gender, that it undermines the rights of West Pakistan refugees, that the presidential order which introduced it is not constitutionally valid.”

This Article was first challenged by a New Delhi based think tank The Jammu & Kashmir Study Centre in July 2015. A petition was based on a legal point, pointing out that Article 35A was never presented before Parliament. This meant the President had bypassed Parliament in this order to add Article 35A. The think tank argued it was “ultra vires the basic structure of the Constitution since it violates the Constitutional procedures established by law.”

Another case was filed by NGO We the Citizens in xxx against both the larger Article 370 and Article 35A of the Indian Constitution. The NGO said Article 370 was only a ‘temporary provision’ to help bring normality in Jammu and Kashmir and strengthen democracy in that State.

It went on to argue that India’s “Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.” The petition said Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.

A third and most recent case was filed in May 2017 by two ladies, Charu Wali Khanna, lawyer and former member of the National Commission for Women, and Seema Razdan Bhargav, a doctor. Their petition pointed out that Article 35A restricts the basic right to property if a native woman marries a man not holding a permanent resident certificate. “Her children are denied a permanent resident certificate, thereby considering them illegitimate,” the petition said.

Both these ladies are of Kashmiri descent but married non-Kashmiris and therefore neither they nor their children can claim any right to property in Jammu & Kashmir state.

Charu Wali Khanna has provided anecdotal evidence of her Kashmiri origins which she points out can be traced to thousands of years of Hindu civilisation in Kashmir Valley. “Am I not a Kashmiri?” She asks and claims the genealogy of her ancestors could be traced through 11,000 years of “myths and oral tradition”. Under the “brutal tyranny” of Afghan rule (1753-1819), however, her ancestors were forced to migrate from the state which constitutes part of the “sixth exodus” of Kashmiri Pandits.

Another most horrible and unhuman effect of Article 35A is the condition of low caste scavengers or Valmikis in the state. This social group has been condemned to be scavengers in perpetuity by the heartless state. The Article violates the fundamental rights of this and other scheduled caste and scheduled tribes people who have lived in Jammu & Kashmir for generations.

Wikipedia states: “The Valmikis who were brought to the state during 1957 were given Permanent Resident Certificates on the condition that they and their future generations could stay in the state only if they continued to be safai-karmacharis (scavengers). And even after six decades of service in the state, their children are safai-karmacharis and they have been denied the right to quit scavenging and choose any other profession.”

West Pakistan Refugees

One of the people worst affected by Article 35A are the thousands of people who migrated from West Pakistan to Jammu & Kashmir in 1947 during the tragedy of Partition of India.

Although these refugees are citizens of India being non-permanent residents of Jammu and Kashmir, they continue to be denied basic rights and privileges since they are not defined as permanent residents of Jammu and Kashmir. They could not get their names on electoral rolls, be elected to panchayats, take government jobs, buy land or be admitted to educational institutions.

Most recently, the Supreme Court has decided to club together the petitioners of different West Pakistan refugees and their organisations. Among them, are Petitioners Kali Das, his son Sanjay Kumar and one other who have demanded basic natural and human rights which at present were denied to them.

The petitioners pointed out they are persons who migrated from Pakistan to India in 1947.: “They were assured by the Government that they should stay in the State of Jammu and Kashmir on the assurance that they would be granted Permanent Resident Certificates (PRC), which would permit them to purchase properties and own a house, opportunity to get a Government job and reservation benefits, since most of them belong to SC-ST-OBC category and a right to vote in State and Municipal elections”.

They claimed that since 1947, the refugees have been given repeated assurances by successive Governments but never given PRC, thereby keeping them as refugees for over 65 years. “Petitioners are filing the instant writ petition for conferring the status of permanent resident on around 3,00,000 West Pakistan refugees, who have been denied basic rights like the right to employment, education, ownership of property and political participation,” the petition said.

Earlier in 2015, the West Pakistan Refugees Action Committee Cell had filed a similar writ petition in the Supreme Court, arguing that they had lived in Jammu & Kashmir for decades and formed 7% to 8% of the state’s population.

Conclusion

Recently, a Supreme Court Bench, led by Justice Dipak Misra, tagged the Khanna petition with the We the Citizens case, which has been referred to a three-judge Bench. The court said the validity of Articles 35A and 370 may ultimately be decided by a Constitution Bench.

All mainstream political parties of the Kashmir Valley as well as separatist organisations are united in their stand on safeguarding of Article 370 and Article 35A. Chief Minister of Jammu and Kashmir, Mehbooba Mufti of PDP has commented that anybody raking up Article 370 & Article 35 A repeatedly, is hurting the soul of Kashmir and has warned of dire consequences if there are tampered with or diluted.

However, this rigid stance will only further deepen socio-religious fissures in the state. It would be better if the Kashmiris of the Valley were appreciative of the difficulties resulting from Article 35A and agreed to its modifications to make it more humane and fair while safeguarding the overall interests of the state’s people.

Allowing Kashmiri ladies married to outsiders to own property in the state and giving rights of West Pakistan refugees and Valmikis will hardly lead to demographic invasion from other parts of the country.

[ends]