Abrogating 35 A provides means to Sangh Parivar’s desired demographic change
JK was long propagated to be India’s crown, a laboratory of Indian secularism being the only Muslim majority state, thus deserving constitutional safeguards to protect her boundaries and demographic status. In essence however, Delhi-Srinagar constitutional interplay was meant to circumvent international obligations vis-à-vis JK. The desired constitutional safeguards came via Article 370 and Article 35 A. Article 370 defined the constitutional relationship between Delhi and Srinagar pending final political settlement, while as Article 35 A came under ‘The President’s Major Order under Article 370, Dated 14 May, 1954’. Before a study is undertaken of what Article 35 A implies, it needs to be noted that business rules have changed with RSS political front—BJP coming to power in mid-2014. While as Congress was for gradual erosion of constitutional safeguards it had brought about, RSS ideologues are taking it head on, in a no holds barred campaign. Inspired writings have started appearing in Delhi print media pointing to do away with 35 A while allowing Article 370 a lease of life, at least for the present. This is obviously being done with a purpose, as the hype concerns Article 370, with least concern being expressed vis-à-vis 35 A yet again pointing to constitutional illiteracy of JK political formations. The very rug on which JK places her constitutional safeguards is sought to be pulled from under the feet, with the potential of un-restorable imbalance.
We may not debate 370 for paucity of space and the fact that provisos of the said article are in public domain. We may however take note of the fact that (clause 1) of Article 370 empowers the President to make laws vis-à-vis JK, however exercise of such powers is limited to matters in Union List and Concurrent List and President may exercise such powers in consultation with Government of the State to correspond to matters specified in the Instrument of Accession. It was in lieu of provision existing in Article 370 (Clause I) that President passed the Major Order dated May, the 14th 1954 to implement Article 35 A, an amended version of Article 35 of Indian constitution. Amended version was meant to stay in tune with JK’s separate constitution, and protect the rights of residents of JK State, in essence the demographic status of the State. We may look at Article 35 of the Indian constitution before taking up the amended version:
Notwithstanding anything in this Constitution, Parliament shall have, and the Legislature of a State shall not have, power to make laws with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and for prescribing punishment for those acts which are declared to be offences under this part. The related articles pertain to equality of opportunity in matters of public employment without prejudice to employees residential status in a State or Union Territory (16/3) remedies for enforcement of rights (32/3) defining judicial intervention in enforcing rights, power of Parliament to modify the rights conferred in their application to armed forces/public order maintenance forces/intelligence and telecommunication personnel (33) defining parliament’s role in indemnifying the act of a person in service of Union within territory of India where martial law was in force.
Article 35 A, the amended versions serves to saving of laws with respect to permanent residents and their rights. It states: Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions, as respects employment under the State Government, acquisition of immovable property in the State, settlement in the State; or right to scholarships and such other forms of aid as the State Government may provide shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.
Article 35 A in essence upholds the rights of Permanent Residents of JK state, as defined in Part III of JK constitution proclaimed on November, the 26th. 1956. Coincidentally defining Permeant Residents has cut off date, same as the one on which Presidential Order implementing 35 A was proclaimed that is fourteenth day of May, 1954. It defines Permanent Resident as the ones who were on the said date State Subject of Class I or Class II having the same meaning as in State Notification No. I-L/84 dated the 20th April, 1927, read with State Notification No. 13/L dated the 27th June, 1932. Class I/II shall retain residency rights, should they seek to return to State under a permit to resettlement after having migrated to Pakistan after first day of March, 1947. And also the ones who had lawfully acquired immovable property 10 years prior to the said date shall be deemed to be Permeant residents.
Sangh Parivar is propagating abrogation 35 A taking it as an infringement of rights of Indian citizens, as the amended version of Article 35 of India constitution—35 A confers protection to Permanent JK Residents, hence a demographic safeguard. And it stands in way of settling non-residents within the confines of JK State. It wouldn’t need a political pundit to pronounce that it is move fraught with dangerous consequences.
Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]