What The Abrogation Of Article 35A Means For The People In Kashmir

Maharaja Hari Singh, Image source: Wikimedia Commons

Independence divided India in more than 500 parts which comprised of assorted chiefdoms and states – that made up what was known as ‘princely states’. When Vallabhbhai Patel made successful efforts towards their dissolution, Jammu and Kashmir remained the toughest one. Hari Singh, the then and the last Maharaja of the state, expressed his ambition of making Kashmir the Switzerland of the East – a state that is completely neutral. But when the state was attacked allegedly by Pakistan in October 1947, Hari Singh requested the Indian government for military assistance. And what he got in exchange was the state’s accession to India.

The Instrument of Accession did not result in the merge of the state in India. It made a temporary settlement where the country would handle the defense, foreign affairs, and communication and Kashmir could have its own constitution, flag, and Prime Minister. Jammu and Kashmir, unlike the other princely states, was not willing to accept the Constitution of India and was adamant on acting only on the basis of the terms of the Instrument.

Gopalaswami Ayyangar, a minister without a portfolio in Nehru’s government, moved the Bill for Article 370 in India’s Constituent Assembly. Article 370 of the Indian constitution gives Jammu and Kashmir the status of a special state, where the state can form its own constitution and 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. It allows the assembly to define “permanent residents” of the state, and the assembly can also alter the definition of a permanent resident by two-thirds majority. According to Article 35A, the non-permanent residents of Jammu and Kashmir cannot own property in the state, they don’t have right to vote in state legislative elections and can’t apply for government jobs.

Photo by Waseem Andrabi/Hindustan Times via Getty Images

The permanent residents’ privilege of owning state’s property has significant historical roots. Since centuries, 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 Article 35A, 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 Maharaja’s rule — seems biased against 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 also suggesting that a woman from the state who marries outside the state would lose her status as a state subject.

However, in a landmark judgment, 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 subjects married to a non-state subject. This is the argument of the two Kashmiri women who filed Public Interest Litigation in the Supreme Court saying that state has disenfranchised the children.

BJP manifesto promised scrapping of Article 370, 35A dealing with special status to Jammu and Kashmir. (Photo by Arvind Yadav/Hindustan Times via Getty Images)

Both RSS and BJP are in favor repealing the Article 35A. BJP, in their 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 one of the main agenda and now when it is heading the strongest government at the centre after having secured the majority in Lok Sabha elections, clamour for the abrogation of Article 370 has grown, but it is easier said than done.

In 1950, Article 370 was adopted to win the hearts and minds of the people and in 2014, after around 60 years, the promise of repealing the same article was used again to win the hearts and minds of the people. Ironically, it worked both time.

The PIL (Public Interest Litigation) filed by the RSS-linked NGO ‘We the Citizen’ for the abolishment of the Article, has attracted the public eye. 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 the Muslim-majority valley. The BJP, on the other hand, believes that Kashmir issue 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. Firstly, according to the Indian Express, “all 41 subsequent Presidential Orders will then become susceptible to legal challenges” 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. With a turbulent past lurking in the shadows the use and misuse of Article 370/35A perhaps portends the future that is to come. It is both an agent and a specter in Kashmir’s politics, ticking away as it maneuvers the state’s fragile political set up.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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