Article 35A --- Guarantor of our identity

We hope our legal luminaries build a case for their people

It is for the first time that the people from all walks of life in valley and other parts of Jammu, have joined together to defend the Article 35-A, which of course is a need of the hour. Article 35-A was added to the constitution of India through the presidential order of 1954 issued by the first president Rajendra Prashad on May 14, 1954 in exercise of the powers conferred by clause (1) of Article 370. Article 35-A empowers the J&K legislature to define permanent residents of the state. The J&K adopted its own constitution on 17th November 1956 and defined the person who could be the permanent resident of the state. The background of state subject law is as old as the geographical  and cultural history of  Kashmir exists. To quote my  historian friend Dr. Abdul Ahad, who states that the permit system known as “Rahdari” for the exit and entry into the state existed even during medieval and ancient periods of Kashmir. The state subject provisions got the legal shape only when Maharaja Hari Singh in 1927 enacted a law known as state subject or permanent residency law. This was done on the constant pursuance  of  Dogras of Jammu and KPs of Kashmir as they had the apprehension of influx of people from erstwhile east and west Punjab would lead to their domination in government services due to their advancement in education. Major portion of government service posts were occupied by either KPs or Dogras in  J&K state during Dogra  rule. A very negligible percentage of Muslims were given jobs in government. For instance even SMA after obtaining post graduate degree in science from Aligarh University, was appointed as a teacher in primary/middle school. In view of lack of medical facilities during Dogra rule, the British Government used to send their team of Doctors from England to treat patients in the valley and even they were  not allowed to stay for more than six months despite their requests for extension of their stay, due to the prevalence of stringent state subject law. This was  done not only to protect the preferential status of  local subjects in government services but also to maintain and promote the separate identity of their permanent and original  subjects of the J&K state, whether they belong to Kashmir, Jammu or Ladakh region.

This time the various groups of civil society in general and Bar Association of Kashmir in particular deserve appreciation for their efforts they made for defending Article 35-A. The Bar association who deputed a team of senior advocates to Delhi to contest the petition challenging the Article 35-A in Apex court under the leadership of Zafar Shah Sr. Advocate shows their  seriousness to defend this Article  of vital importance for the people of all the three regions of J&K state. One thing we should understand that the mainstream political parties are just making hype for this issue only to gain edge over each other for vote bank politics. It is these political parties who are responsible for denting the Article 370 and making it an empty shell just to gain and regain their lust for power for their and families vested interests. The dismissal of SMA  by the Sadri Ryiasat of J&K state Dr. Karan Singh in 1953, was a turning point in the history of Kashmir. But it happened only due to betrayal of his friend Pt. Jawhar Lal Nehru and breach of trust by his close associates like Bakhshi Ghulam Muhammad and G.M Sadiq who stabbed him in the back. This proved that SMA though a tall leader lacked political vision and statesmanship.  The ratification of accession by constituent  assembly in Feb, 1954, extension  of jurisdiction C&AG, on 26th Feb 1958 and unanimous decision of J&K state Assembly seeking amendments of state constitution to provide for extension of jurisdiction of the election commission and Supreme court over J&K state in 1959 was done during Bakshi Ghulam Muhammad rule. Provision of Article 356, where under President’s rule could be imposed in J&K state was extended and applied on 21-12-1964, and 6th amendment of J&K constitution providing substitution of the nomenclature of Saddari Ryiasat and Prime Minister by Governor and Chief Minister on 26-01-1965  was done during G.M. Sadiq’s tenure. Finally all these wrongs done were endorsed by SMA in 1975 after his unconditional and total surrender when he was appointed as the Chief Minister with the support of  Congress government. With the passage of time, 94 of 97 entries in central list of topics for legislature were extended to J&K state and so were 260 of 395 Articles of constitution of India’ as stated by A.G. Noorani, a constitutional expert, in one of his articles four year ago. If British sold Kashmir to Mahraja Gulab Singh in whole sale, the leaders of mainstream political parties sold  Kashmir in retail from time to time.  

It is the leaders of the mainstream political parties who are complicit in eroding the terms of accession by making amendments  to J&K constitution and denting the Article 370 to gain political power for their vested interests. Some of the leaders have looted J&K state of its resources and  amassed huge wealth by siphoning central funds and invested not only in valley, Jammu and other parts of country but abroad in UAE and UK. The political parties have therefore lost their moral right to express their  concern on such issues. Omar Abdullah’s recent statement regarding protests and shut down  on 5th and 6th August is also condemnable. Our identity is a precious asset of heritage and therefore we need to preserve this heritage at all cost. Since it is a legal and technical issue, we must relent more on the team of Kashmir Bar association, lead by Zafar Shah  a  constitutional expert of repute, who Insh-Allah will succeed in defending  our Article of identity and faith.        


(Abdul Rashid Khan is the former IGP)