Why the government’s step of demystifying Article 35 A is a welcome step

Updated: August 6, 2019 4:05:36 AM

There is not a word about the 45,172 lives lost to terrorism from 1988 to 2019, or the presence of Kashmiri shops in virtually every part of India.

Article 370, Home minister, Amit Shah, Jammu & Kashmir, Live Debate,Article 370: Home minister Amit Shah in the Rajya Sabha.

By Sanjeev Nayyar

With the extraordinary movement of security forces in J&K and advisory to Amarnath yatris, one knew that the Modi-Shah-Doval (MSD) trio were planning something big. One thought Modi would make a historic announcement from the ramparts of the Red Fort, but home minister Amit Shah has rightfully first informed Parliament of the scrapping of Article 370.

The decision to make Ladakh a UT would be welcome by the Ladakhis. In 2002, Thupstan Chhewang, chairman, Ladakh Hill Development Council, had told Rediff.com that “Ladakh was an independent kingdom till 1836, when it was invaded and annexed to the Dogra state of Jammu. In 1947, when India was granted independence, we were part of the principality of J&K. It is how we became part of the J&K state.” Choudhary Anwar Hussain, advocate and leader, Gujjar United Front, had said, “Abrogation of Article 370 will help the STs to get direct benefits of various schemes meant for them.”

A reading of the President’s order on Article 370 does not make it clear whether Article 35A has also been scrapped; perhaps it does not need a Parliament discussion because it was not passed with Parliament’s approval in the first place. Either way, it is imperative to know its contents and how it adversely affected the people of J&K.
Article 35A was incorporated in the Constitution by a presidential order in 1954, implying it was not subject to the scrutiny of Parliament. Armed with the provisions of Article 35A, provisions were sanctified in the J&K State Constitution in November 1956, dealing with the entity called ‘Permanent Residents.’ Who is a PR? Section 6 of the J&K Constitution reads:

1. “Every person who is, or deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the 14/5/1954:
(a) he was a State Subject of Class I or the Class II; or (b) having lawfully acquired immovable property in the State, he had been ordinarily resident in the State for not less than ten years prior to the date.”

2. “Any person who, before 14/5/1954, was a State Subject of Class I or II and who having migrated after 1/3/1947, to the territory now included in Pakistan returns to the State under a permit of resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on return be a permanent resident of the State.”

Those staying in J&K are classified as PR and non-PR. A State Subject who migrated to Pakistan but returns to J&K under a permit for resettlement in the State or permanent return will be deemed to be a citizen of India. But those who migrated from Pakistan during partition are denied PR status, deemed West Pakistan Refugees (WPR).

Note that the concept of PR originated from ‘State Subject’. The definition of ‘State Subject’ of Class I, II, III was set out in the State Maharaja’s Notification of 20/4/1927 read with the Notification of 27/6/1932. These notifications provided to some extent the law of the Citizenship of the State.

These definitions came into being because during the rule of Maharaja Pratap Singh (1885-1925), there was an outcry due to appointment of a large number of western-educated men in Kashmir and to prevent rich neighbours from Punjab and other states buy property in J&K. The agitation was so strong the Maharaja was forced to issue an order that ‘State Subjects’ would be preferred to outsiders in cases of government employment, hence the definition of State Subject in 1927. Thus, sections of the State’s Constitution allow only PRs to be registered as voters in State Assembly.

Monarchy may have allowed Maharaja of J&K to disregard democratic equality to offer special treatment to certain subjects. But are these laws defensible in a sovereign democratic republic like India? And it is not the case that the poverty levels in J&K today are higher than in other parts of India; they are actually much lower.
Consequences of Article 35A

One, some residents of J&K, being citizens of India, can vote in the Lok Sabha elections but not in the State polls.

Two, WPR have been denied citizenship rights in J&K. WPR are mostly Hindus and Sikhs (70% SCs, 10% OBCs, 10% Sikh, 10% others) who crossed over to J&K during partition. Because they are not PR, WPR cannot acquire immovable property in the State, be employed by the State government and be a member of a village panchayat. They have no right to scholarships and such other forms of aid as the State government may provide.

Three, companies are averse to setting up manufacturing units or IT centres in J&K because they cannot own the land. Educated local talent is unemployed or migrates.

Four, banks will be apprehensive of granting loans against land because in case of default, properties given as security cannot be sold under the Sarfaesi Act, as SBI discovered in 2015. It adversely affects employment and economic activity in J&K.

Five, till an October 2002 J&K High Court order, when a girl being a PR of J&K marries one who is not a PR, she no longer remains a State Subject so loses the right to inherit property and get a government job. But even post the order, the law is discriminatory because the children of such women don’t enjoy succession rights. Conversely, if a male citizen of J&K marries a non-PR, the spouse automatically becomes a citizen of the State.
It has become the norm for the Valley to play the victim card. They complain about lack of employment, but warn of dire consequences if Article 35A is repealed. Also, Valley residents hold most government jobs and are the largest beneficiaries of government expenditure, yet scream alienation.

There is not a word about the 45,172 lives lost to terrorism from 1988 to 2019, or the presence of Kashmiri shops in virtually every part of India.

They make baseless allegations on attempts to change demography when the population of Muslims in J&K was 70% in 1951 and 68.31% as per 2011 Census. Did the demography change when:
– The Sheikh Abdullah-led government granted citizenship rights to numerous Uyghur Muslim families in 1952, and settled them in the Eidgah area of Srinagar;
– Lakhs of Kashmiri Valley Hindus left their ancestral homes forever;
– Rohingya Muslims from Myanmar were settled in Jammu;
– Kashmiri Muslims bought property on the outskirts of Jammu after the Kashmiri Hindu exodus of 1989-90. Sidhra, Bathindi and Narwal came into existence with an intent to change demography and increase Muslim population of Jammu region.

Conversely, not a word by Valley leaders on efforts by Kashmiris to change demography of Jammu. The unusual increase in voters in Kashmir Valley must be probed. During 2001-11, the State’s population went up by 23.6%, while in 2002-14, the number of voters rose by 14%. In absolute terms, the population in Kashmir between 2001 and 2011 went up by 14.11 lakh (25.8%), while the increase in number of voters between 2002 and 2014 was 24.7% (7.12 lakh). Corresponding figures for Jammu are 21% and 5%. So, the percentage rise in voters in Kashmir was 24.7%, against only 5% in Jammu!

Note that in 2002 the number of voters in Jammu was more than in Kashmir by 1.41 lakh; in 2014, Kashmir exceeds Jammu by 4.21 lakh, i.e. a swing of 5.67 lakh.

So far, the country was being held hostage by Kashmir Valley, which occupies only 15.73% of the state’s land area of 1,01,387 sq-km. The people of India now pray that women, WPR, SCs and STs would get the same rights as their counterparts in the rest of India, followed by the development of Jammu and Ladakh regions, ignored since 1951 by the Valley-centric rulers of J&K.

(The author is Chartered accountant & founder www.eSamskriti.com Twitter: @NayyarSanjeev)

Get live Stock Prices from BSE and NSE and latest NAV, portfolio of Mutual Funds, calculate your tax by Income Tax Calculator, know market’s Top Gainers, Top Losers & Best Equity Funds. Like us on Facebook and follow us on Twitter.