Article 35-A: Protect it pro-actively

Any little complacency can prove dangerous for us

Dr. Farooq Ahmad Peer
Srinagar, Publish Date: Sep 13 2017 10:46PM | Updated Date: Sep 13 2017 10:46PM
Article 35-A: Protect it pro-activelyFile Photo

The Supreme Court on 25th of August, 2017 consented to hear after Diwali all the pleas/ petitions challenging Article 35-A that confers special rights and privileges on the permanent residents of Jammu and Kashmir. Earlier, the Apex Court had favoured hearing of the matter by a five-judge constitution bench in case the Article is ultra-vires of the Constitution or if there is any procedural lapse. The petitions have challenged certain provisions of the Constitution which deny property right to a woman who marries a person from outside the state. The provision, which makes such women from the state lose rights over property, also applies to her offspring’s. The Article 35-A, which was added to the Constitution by a Presidential Order in 1954, accords special rights and privileges to the citizens of Jammu and Kashmir. It also empowers the state's legislature to frame any law without attracting a challenge on grounds of violating the Right to Equality of people from other states or any other right under the Indian Constitution.   

The Article 35-A is one of the most important provisions in the Constitution because any modification with regard to it invites sharp reactions from parties across the walkway. The threat of abrogation of Article 35-A is leading to unprecedented political developments in the Valley. For instance, it is for the first time in the recent past that all major political parties in Kashmir, the ruling People’s Democratic Party and the opposition National Conference, Congress, independent MLAs including the separatists have reacted against the tinkering of the Article.  Even divergent sections of the society have raised concerns on the issue and have been voicing against attempts   of abrogating the article as an assault on the special status of Jammu and Kashmir. 

The centre’s decision not to support the state government’s stand in the Supreme Court for dismissal of the petitions, against Article 35-A, has made it amply clear that the special status of our state is in danger and thus making it obligatory for us to get united irrespective of parties, regions and religion in order to  protect the special identity of our State. Article 35-A empowers the J&K legislature to define permanent residents of the state.  During the Dogra rule in 1927, the Dogras from Jammu also approached the then Maharaja about the fear that an influx of people from Punjab would lead to their domination in government services and other fields of life. These fears led to the issuance of a separate notification by the Maharaja in 1927 and 1932 which defined the state subjects. The petitions filed by unimportant and little known organizations and persons at the behest of vested interested parties is a part of a larger design to breach J&K’s special position as Article 35-A bars non-state subjects from settling and buying property in the state.

An exceptional and unprecedented development took place when Mehbooba Mufti, the Chief Minister of the state met her staunch opponent Dr Farooq Abdullah, the National Conference President and the recently elected M.P at his residence and discussed the serious issue for nearly half an hour. The development occurred a day after the National Conference leader warned the centre against scrapping the Article saying that the move could trigger an explosive situation in the state which would be of “far greater magnitude” than the 2008 Land Row.  Since protection of article 35 A is about the rights and survival of the people and unity is much needed to stand against the nefarious designs of the forces which are against the special position of Jammu and Kashmir.  And therefore CM’s meeting with Dr Abdullah was needed and could be called as a wise and visionary move.  

The scrapping of Article 35-A will result in the loss of special privileges including state subject law, right to property, right to employment and right to settlement enjoyed by the citizens of the state. These privileges will become available to citizens from across the country and J&K will become like any other state where people from any state will have all these rights. But more importantly, if Article 35-A is scrapped, it would raise the question about the legality of all constitutional orders from 1950 onwards. When the Centre takes a completely different stand on the matter of (Article 35-A) which is so dear to the people of J&K, it shows how weak and helpless we are because of disunity.  There is a need to clear this wrong notion that Article 35-A is a Kashmir centric issue. Its scrapping would lead to more damages for Jammu and Ladakh than Kashmir.   This is not for the first time that Article 35-A has been challenged in the Supreme Court but similar petitions have been dismissed by the Court thrice in 1956, 1961 and 1970.

The government and all political parties need to defend the Article 35-A proactively in the Supreme Court. No complacency is to be shown even though the case has been adjourned till Diwali and all political parties should fight for protecting the rights and privileges of the people of the state.