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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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