Friends , recently you must have read or heard in the news that Supreme Court is going to hear petitions on the Article 35 a of the Indian Constitutions. Today SC has confirmed that starting from 26th Feb to 28th Feb, they will hear the petitioners arguments and then decide about the same.
Now what is article 35 a of constitution. Actually it pertains to some special privileges give to the state of Jammu & Kashmir. The brief history of this article is:
Following the accession of J &K to the Indian Union on 26th Oct 1947, which was signed with Maharaja Hari Singh. Constitutional order of 1950 formalised this relationship between state & Union of India which culminated in 1952 Delhi Agreement, where it was agree that citizenship of India will be given to subjects of J &K, who will now be called permanent residents. In his statement to Lok Sabha on Delhi Agreement, Nehru said ;
‘ The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time past, in the Maharaja’s time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. The Maharaja stuck to this that nobody from outside should acquire land there. And that continues. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Now they want to vary the old Maharaja’s laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. However, we agree that this should be cleared up. The old state’s subjects definition gave certain privileges regarding this acquisition of land, the services, and other minor things, I think, State scholarships and the rest.’
Afterwards the President of India issued The Constitution (Application to Jammu & Kashmir) Order 1954 through which Indian citizenship was extended to the residents of the state, and also article 35a was inserted into the Indian constitution enabling the state legislature to define the privileges to the permanent residents.
After this J&K Constituent Assembly incorporated a discriminatory provision under section 51- A person shall not be qualified to be chosen to fill a seat in the State assembly –unless he is permanent resident of the state, section 127 (Transitional provisions – Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as service or post under the State, shall continue in force so far-as consistent with the provisions of this Constitution) and Section 140 (The elections to the Legislative Assembly shall be on the basis of adult suffrage ; that is to say, every person who is a permanent resident of the State and who is not less than Eighteen years of age on such date …), etc.
No person who is not a Permanent Resident of J&K can own property in the state of J&K
No person who is not a permanent resident of J&K, can obtain a job within J&K govt.
No person who is not permanent resident of J&K can join any professional college run by govt of J&K or get govt aid out of govt funds.
The problem with this Article now is-some interpret the Article as discriminatory against J&K women, because it disqualifies them from their state subject rights if they married no permanent residents. But in a landmark verdict in Oct 2002 J&K High court held that women married to non permanent residents will not lose their rights, but the children of such women however do not have succession rights.
An NGO, We the Citizens, challenged this article 35 a in the SC in 2014, on the grounds that it was not added to the constitution through an amendment under article 368. It was never presented before Parliament, and came into affect immediately.
In another case in the SC, last year in July ,two Kashmiri women argued that the state’s law, flowing from 35 a, had disfranchised their children. Responding to their plea, the SC sent notices to Centre and State in Jul 2017, the Advocate General said that the petition against article 35a has raised very sensitive questions that require a larger debate.
On May 14, 2018, the Centre told the bench that the matter is sensitive and since the efforts are being made to find a solution, the court should not pass any interim order as it might be counter productive. That time J&K govt’s advocate, this article has already attained permanent status, let their be no interim order. The Counsel for the petitioner countered and said ‘It is strange situation in J&K as persons from Pakistan can come and settle in the state under law but those who have been staying for generations cannot even get a govt job.’
Those in favour of retaining this article fear that its repeal would lead to further erosion of autonomy of the state and might trigger demographic change in the Muslim majority valley.
So the crux of the matter is all these local Kashmiri political parties fear that repealing this law means that Hindus will flood the valley and Muslim might lose their majority in Kashmir region, as in Jammu and Ladhak region they are not in majority. But no one talks of the resettlement of Kashmiri Pandits in the valley, who been thrown out of valley, forcibly by the Muslim terror organisations.
Remember J&K for last so many centuries were ruled by Hindu kingdom, and at the time of accession of J&K with India, it was Hindu majority area. Fact is over the years J&K is ruled by politicians settled in Kashmir region, and those politicians have only played religion based politics by neglecting Hindu majority areas.
Like Ayodhaya, this is also a long battle in the SC, and no one knows when it will end.
Awaiting your views/feed backs/comments.
Anil Malik
Mumbai, India
25th Feb 2019
R. N. Mungale.
Let us wait & watch.
Bobby
An agreement means that a decision has been made after agreeing to certain concessions on both sides. With the withdrawal or breaking of those agreed upon clauses, both parties are not bound by it anymore.
This could open up a can of worms as the people will have every right to withdraw from the union after they take part in a plebiscite.