Posted by Dr. Gopal Unnikrishna Kurup
The Article 35A of the constitution sticks out almost as a fraud, injurious to the interests of the state and the country, connived at and committed by the then governing dispensation which was more concerned about vote bank politics and appeasement rather than national interests.The article was created by the backdoor method of a Presidential order in 1954 as a sub provision of Article 35. But surprisingly you will not find this Article after Article 35 in the main body of the Constitution, as is required when a Constitutional amendment is brought about, but in the appendix! It is surprising and also worrisome that a provision like Article 35A has received little or no academic attention until recently.
Article 35 forms part of the "Fundamental Rights" chapter, and Article 35 A having been added after this provision becomes part of the same chapter, but ironically, in essence and substance, it curtails the fundamental rights of a vast number of citizens of our country. Article 35A is nothing but a restricted version of the 1927 & 1932 Orders empowering the state legislature to determine who are permanent residents of the state and confer on them various special rights and privileges while imposing restrictions on others
Unfortunately, by virtue of Article 5 of the Constitution of India, all residents of Jammu and Kashmir are citizens of India enjoined with various rights but not vice versa. Consequently, a situation has arisen when no one outside of Jammu and Kashmir can (i) purchase land there, (ii) get benefit of scholarship and admission to educational institutions of the state, (iii) apply for government employment in the state. It is not just limited to people outside of Jammu and Kashmir not satisfying the permanent resident criteria; even women marrying out of the state lose out on various rights and become "non-permanent" which makes them ineligible to buy land in their home state or benefit from various welfare legislation dealing with their right to property. Although in 2002, a full bench of the Jammu and Kashmir High Court held that even after marriage to outsiders, such women will not lose out on their permanent resident status, their children still do not have any rights as they are not included in the permanent resident category. In fact, one of the petitions pending before the Supreme Court highlights this aspect of discrimination and it is time that this issue is settled once and for all.
There are glaring instances where Article 35A has led to discrimination, violating the principles of human rights and various provisions of the constitution, forcing lakhs of people in the state to lead the lives of second-class citizens. About 200 Valmiki families who were brought from Punjab to Jammu and Kashmir in 1957 to be employed as Safai Karamcharis were promised "permanent resident status", but 60 years on, their status is still in limbo. Even though many members of these families have the educational qualifications required to apply for government employment, they are not entitled to do so except as Safai Karamcahris. Another glaring instance of discrimination pertains to the refugees from West Pakistan who migrated to Jammu and Kashmir after partition but still treated as refugees. A population of around 3,00,000 is excluded from social welfare schemes, scholarships, admission to schools run by the state government on account of this protective shield that the state of Jammu and Kashmir enjoys on account of Article 35A.
Ironically. the provision is a self-flagellation in a way. The economic potential of the state has not been realized as Article 35A acts as a deterrent to investment from outside It is the people of the state who have been deprived of the benefits that an open economy ushers in.. So, rather than aiding the people of Jammu and Kashmir, these provisions have, over the years, impeded the growth of the state.
Also, this situation has been exploited by separatists who find it easy to enlist unemployed youth in the name of protecting the Kashmiri identity Every time these Articles are mentioned, all political parties except for the BJP raise the banner of revolt and predict doomsday for the country if these are repealed. Currently, we are witnessing the same scenario. To end this, Article 35A should be approached dispassionately so that the Supreme Court can take a legal view of the entire issue.
The Conundrum of Article 35A.
It is rather depressing to dwell on the confounding problems the nation has to confront which have been created by the premier political family of the Congress in its pursuit of votebank politics and policy of appeasement.The latest conundrum is Article 35A of the Constitution conferring discriminating rights for Jammu&Kashmir.
The Article 35A of the constitution sticks out almost as a fraud, injurious to the interests of the state and the country, connived at and committed by the then governing dispensation which was more concerned about vote bank politics and appeasement rather than national interests.The article was created by the backdoor method of a Presidential order in 1954 as a sub provision of Article 35. But surprisingly you will not find this Article after Article 35 in the main body of the Constitution, as is required when a Constitutional amendment is brought about, but in the appendix! It is surprising and also worrisome that a provision like Article 35A has received little or no academic attention until recently.
Article 35 forms part of the "Fundamental Rights" chapter, and Article 35 A having been added after this provision becomes part of the same chapter, but ironically, in essence and substance, it curtails the fundamental rights of a vast number of citizens of our country. Article 35A is nothing but a restricted version of the 1927 & 1932 Orders empowering the state legislature to determine who are permanent residents of the state and confer on them various special rights and privileges while imposing restrictions on others
Unfortunately, by virtue of Article 5 of the Constitution of India, all residents of Jammu and Kashmir are citizens of India enjoined with various rights but not vice versa. Consequently, a situation has arisen when no one outside of Jammu and Kashmir can (i) purchase land there, (ii) get benefit of scholarship and admission to educational institutions of the state, (iii) apply for government employment in the state. It is not just limited to people outside of Jammu and Kashmir not satisfying the permanent resident criteria; even women marrying out of the state lose out on various rights and become "non-permanent" which makes them ineligible to buy land in their home state or benefit from various welfare legislation dealing with their right to property. Although in 2002, a full bench of the Jammu and Kashmir High Court held that even after marriage to outsiders, such women will not lose out on their permanent resident status, their children still do not have any rights as they are not included in the permanent resident category. In fact, one of the petitions pending before the Supreme Court highlights this aspect of discrimination and it is time that this issue is settled once and for all.
There are glaring instances where Article 35A has led to discrimination, violating the principles of human rights and various provisions of the constitution, forcing lakhs of people in the state to lead the lives of second-class citizens. About 200 Valmiki families who were brought from Punjab to Jammu and Kashmir in 1957 to be employed as Safai Karamcharis were promised "permanent resident status", but 60 years on, their status is still in limbo. Even though many members of these families have the educational qualifications required to apply for government employment, they are not entitled to do so except as Safai Karamcahris. Another glaring instance of discrimination pertains to the refugees from West Pakistan who migrated to Jammu and Kashmir after partition but still treated as refugees. A population of around 3,00,000 is excluded from social welfare schemes, scholarships, admission to schools run by the state government on account of this protective shield that the state of Jammu and Kashmir enjoys on account of Article 35A.
Ironically. the provision is a self-flagellation in a way. The economic potential of the state has not been realized as Article 35A acts as a deterrent to investment from outside It is the people of the state who have been deprived of the benefits that an open economy ushers in.. So, rather than aiding the people of Jammu and Kashmir, these provisions have, over the years, impeded the growth of the state.
Also, this situation has been exploited by separatists who find it easy to enlist unemployed youth in the name of protecting the Kashmiri identity Every time these Articles are mentioned, all political parties except for the BJP raise the banner of revolt and predict doomsday for the country if these are repealed. Currently, we are witnessing the same scenario. To end this, Article 35A should be approached dispassionately so that the Supreme Court can take a legal view of the entire issue.
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