The background story of Article 35-A and the abrogation thereof
The change of demographic character of the J&K State has always been a cherished dream of RSS-BJP and it has employed all means- military, political and judicial to achieve this objective.
While the Jammu massacre of Muslims in 1947 was a state sponsored military operation to change the demographic character of Jammu province, a slew of political measures were soon set in motion thereafter. Karan Singh, once the Sadri-Riyasat of the state and whose father, as ruler of the state had enacted state subject laws for protection of various rights of his subjects, started instigating the West Pakistan refugees to demand state subject rights. These measures got a fillip when BJP ascended to power in New-Delhi and state of J&K in coalition with PDP. Consider the following developments:
a) A move to issue Permanent resident certificates (PRCs) in schools in Jammu was initiated in utter contravention to prescribed rules & procedures. The purpose behind the move was to issue as many certificates to non-state subjects as possible.
b) Voices were raised vociferously to Settle West Pakistan refugees in Jammu.
c) Muslims in Jammu were harassed & evicted from their natural habitat under the pretext of clearance of forest areas. In fact the recent rape & murder of an eight year old Muslim girl in Kathua was committed only to scare & drive Muslim away from their homes in Hindu areas.
d) voices were raised to settle retired Army personnel in the State by allotting them land, Industrial plots & other benefits. In fact a large chunk of land has already been identified in Srinagar for the purpose with more in the pipeline. Though a clarification to the contrary has been issued by the Govt, but it raises more questions than answering any.
e) Permanent shelters were proposed to be constructed for non-state subject shelterless people under NULM scheme
f) Separate colonies for Pandits were proposed to be constructed with an eye to settle non-state subjects in such colonies.
g) Industrial policy was amended in such a way as to allow non-state subjects to acquire land in
h) As a logistic step, Central statistics Act 2008 has been amended to apply it on J&K state with the purpose of collecting & processing data of border residents to the entire exclusion of State Govt. The purpose of this amendment could be to settle ex-army personnel in border areas without the State Govt. knowing it.
Put the above sequence of events (not necessarily in that order) in a perspective and a definite pattern emerges which makes it abundantly clear that Sangh Parivar has scripted a well crafted agenda to change the demographic character of the state by hook or by crook.
Continuing with its agenda, RSS & its political arm BJP have now decided to mount a judicial assault on the state demography by challenging constitutional validity of Article 35 A of Indian constitution which provides a protective shield to the definition, benefits & privileges enjoyed by permanent residents of the State according to their own hereditary state subject laws in existence since 1927. It may be recalled that this article was inserted in the Indian Constitution for the first time through the CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 issued by the President of India to allay the fears of people of J&K State to loose their own rights in the vast ocean of Indian laws . For a ready reference, Article 35A is reproduced below:
i) 35A. “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,—
j) (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
k) (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
l) (i) employment under the State Government;
m) (ii) acquisition of immovable property in the State;
n) (iii) settlement in the State; or
o) (iv) 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.”
As will be seen this article starts with the words “Notwithstanding anything contained in this Constitution—–’’ which means that this article shall have overriding effect over other articles of the Indian Constitution. The article then proceeds to state that any definition, rights, benefits & privileges enjoined upon the permanent residents of the J&K State by virtue of their own laws, whether existing or applied in future shall not be void merely on the ground of being inconsistent with corresponding definitions, rights or privileges contained in Indian constitution. It can be explained by way of following instance: Suppose Mr. A, a resident of Delhi petitions Supreme Court of India that he is not able to purchase immovable property in J&K on the ground of being a non-state Subject and hence is discriminated on the basis of place of birth which is violative of Article 15 of Indian Constitution. His petition is liable to be dismissed on the ground that various rights reserved for permanent residents of the State of J&K under the Constitution of that State cannot be called into question because of Article 35A of Constitution of India. Clearly this article only provides a protective shield to our existing and/or future state subject laws and doesn’t bestow or create any new right for us. In fact that is what Supreme Court has already pronounced in Bachan Lal Kalgotra v. State of Jammu and Kashmir[ AIR 1987 SC 1169.]. The chief contention in the said case was that the refugees from West Pakistan who had migrated into the State of Jammu and Kashmir in 1947 are not permanent residents as defined in s.6 of the Jammu and Kashmir Constitution, with the result that they were disentitled to be included in the electoral rolls of the State Assembly or to be appointed to any service under the State Government by direct recruitment or to purchase land in the State etc. etc. The petitioner had sought the conferment of all such benefits under Article 35A read with section 6 of the Constitution of Jammu Kashmir thereof as are allowed to the permanent residents of the State . While dismissing the petition after dwelling at length on Article 35A , the Apex Court held that in view of the peculiar Constitutional position obtaining in the State of Jammu and Kashmir, we do not see what possible relief we can give to the petitioner. All that we can say is that it is up to the Legislature of the State of Jammu Kashmir to take action to amend various laws to accommodate the interests of West Pakistan refugees. More recently the Honbl’e High Court of J&K, has held that Article 35A clarifies the already existing constitutional and legal position and does not extend something new to the state and that this article clears the constitutional relationship between people of rest of the country with the people of J&K.
What is RSS/BJP going to achieve from its intended attempt to Challenge Article 35A on an entirely different ground now? A favorable order from the apex court will pave way for admission of non-state subjects & WPRs to become permanent residents of the State which it wants as a tool to change the demographic character of the State. The move could ultimately lead to separation of two & a half districts of Jammu from the State and remember a partition of the State on communal lines is far more dangerous for whole of India with unimaginable consequences.
(The author is a practicing chartered Accountant.)