Article 35A: Boon Or Bane ?

-MEGHA MITTAL (meghamittal666@gmail.com)

During the time of the partition of India and Pakistan Jammu and Kashmir chose to be an autonomous state. After 1947 both India and Pakistan wanted Jammu and Kashmir to be the part of their respective countries and thus it led to war in 1949. When the issue was taken to US Security Council for resolution, it was decided to solve the issue through a fair and impartial plebiscite which was never held because of the interruption of Pakistan and India in their own ways. Then the Government of India in 1949 accepted that Jammu and Kashmir is a disputed state and thus adopted article 370 which became operative in 1952. This Article 370 of the Constitution of India gives Jammu and Kashmir the status of a special state where the state can form its own constitution and can make laws through their own constituent assembly (along with some exceptions).

Article 35A which was introduced after the adoption of article 370 in the constitution specifically deals with the rights and privileges of the permanent residents of Jammu and Kashmir state. It allows the assembly to define the 'permanent residents' of state and the assembly can also alter the definition of a permanent resident by the two-thirds majority. According to article 35a, the non-permanent residents of Jammu and Kashmir state can't own property in Jammu and Kashmir, they don't have right to vote in state legislative elections and can't work for the state. The privilege to the permanent residentials of Jammu and Kashmir people of owning state's property has significant historical roots. For a long time past, in the Maharaja's time, there had been laws preventing the delectable land of Jammu and Kashmir from the outsiders whose sole qualification might be the possession of too much money.  The Jammu and Kashmir Assembly using its power under Article35a, has defined Permanent Resident as a person who was a state subject on May 14, 1954, or who had been a resident of the state for 10 years and has "lawfully acquired immovable property in the state."

Article 370 itself is gender neutral, but the way Permanent Residents are defined in the State Constitution — based on the notifications issued in April 1927 and June 1932 during the Maharajah's rule — seems biased for women. The 1927 notification included an explanatory note which said: "The wife or a widow of the State Subject … shall acquire the status of her husband as State Subject of the same Class as her Husband, so long as she resides in the State and does not leave the State for permanent residence outside the State." This was widely interpreted as suggesting also that a woman from the State who marries outside the State would lose her status as a State subject. However, in a landmark judgement, in October 2002, the full bench of J&K High Court, with one judge dissenting, held that the daughter of a permanent resident of the State will not lose her permanent resident status on marrying a person who is not a permanent resident, and will enjoy all rights, including property rights. But what the judgment lacked was the clear explanation on the status of children of female state subject married to a non-state subject. This is the argument of the two Kashmiri women who filed Public Interest Litigation and Supreme Court saying that state has Di franchised the children.

RSS and BJP favor the repealment of the article 35 a BJP in the election manifesto has promised to scrap or at least dilute the special status to the state given under Article 35A. BJP has won the election in 2014 with this issue as the main agenda and now when BJP is heading the strongest government at the center in 30 years after having secured the majority in Lok Sabha elections, clamor full repealment of article 370 has grown but it is easier said than done.

In 1950, Article 370 was adopted to win the heart and mind of the people and in 2014, after around 60 years, the promise of repealing the same article is used to win the heart and mind of people. Both time it worked.

The PIL (public interest litigation) was filed by people and RSS linked NGO 'we the citizen'  for the abolishment of the Article, has attracted the public discourse. Political parties fear that changes in 35A would lead to further erosion of J&K's autonomy and will make a major demographic change in Muslim majority valley. The RSS, on the other hand, believes that Kashmir can only be resolved by changing the demographic composition of the state particularly the valley.

If article 35A is repealed by the verdict of Supreme Court it will have more implications. Very first, all 41 subsequent Presidential Orders will then become susceptible to legal challenges, according to The Indian Express. This is because all of these Orders were in essence amendments to the 1954 Order. These subsequent orders have extended 94 out of the 97 entries in the Union List to the state as well as applied 260 articles of the Indian Constitution to the state. The Orders have also been used to override provisions of the state Constitution, like changing the Sadr-e-Riyasat (President of the State) to the governor, prime minister (of the state) to the chief minister and extend the powers of the Supreme Court and Election Commission to Jammu and Kashmir.  Rights given to the woman in the verdict of October 2002 will also come in question if the article 35a is repealed. The Verdict of Supreme Court will definitely create a huge maneuvring in the political and social environment of Jammu and Kashmir.