October 2017 News

Time To Clear Up The Fallacies Around Kashmir's Article 35A

30 October 2017
The Wire
Sheikh Attar and Palvi Singh Ghonkrokta

Srinagar: In 2015, the constitutional validity of Article 35A was challenged, with a petition filed in the Supreme Court by the Jammu and Kashmir Study Centre, an RSS-affiliated think tank. Recently, a documentary screening on the article was held by the same organisation aimed purportedly at highlighting its discriminatory impact on some resident groups in the state, besides talking about the plight of Kashmiri women in general. The documentary did address longstanding grievances - of the hapless West Pakistan refugees, who form a major chunk of the people in question, along with the few thousand safai karamcharis of Valmiki basti, whose services were sought from neighbouring Punjab in 1957, and the Gurkha residents who have fought wars for Kashmir under the erstwhile rajas of Kashmir. Extending permanent resident status to the above three categories is a matter that has been politically dodged and kept in abeyance for too long and calls for urgent resolution by the state government. But the movement to scrap 35A is not so much about giving to justice to those unfairly excluded from its ambit. Rather, the aim is something else altogether. Article 35A is a bone of contention for two reasons. First, for the manner in which it was added to the Indian constitution via the Presidential Order of 1954, bypassing the prescribed parliamentary procedure, hence the call for its unconstitutionality. Second, for its discriminatory results on sections of the people, mentioned above. While the first question is for the courts to decide, with a petition pending, the fallacy about the role of Article 35A with regard to the inclusion of West Pakistan Refugees (WPRs) and the status of Kashmiri women needs to be set right. Essentially, Article 35A provides immunity from legal challenge to any law of the state that confers permanent residents with special rights and privileges. What is equally true is that it is perfectly within the state legislature's law making power to amend the definition of who constitutes a 'permanent resident'. In fact, Section 8 of the Jammu and Kashmir constitution clearly states: 'Nothing in the foregoing provisions of this part shall derogate from the power of the state legislature to make any law defining the classes of persons who are, or shall be, permanent residents of the state'. The language of the section shows that a narrow connotation was deliberately avoided. 'Or shall be' implies a wider ambit and that future additions were explicitly contemplated. Further 'Nothing in the foregoing provisions' covers Section 6 that defines 'permanent residents', setting aside all doubts that altering the definition of permanent residents is well within the state government's purview. In light of this existing amendment provision in law, advocating the complete obliteration of a constitutional article with so much gusto, raises doubts about the motives involved. Many in the Valley see it as a deliberate attempt to undermine the border state's special status that will then make it even easier for the Centre to intrude upon its autonomy. All the same, there is an immediate need to address the situation of refugees in the state. Piecemeal efforts like identity certificates may help secure Central government jobs but land ownership is still a point of discord. While fears of change in demographics are unfounded, given that the total number of refugees is merely over a lakh, granting state citizenship to them is undoubtedly bitterly contested by parties, including separatists. Such a move then, is likely to add to the exisitng socio-political turmoil, but there is a need to rise above the political sphere and view the issue from a humanistic prism. Politics alone cannot be allowed to take precedence over humanity. A more palatable proposition would be a Chakma-style lead, offering conditional citizenship with a proviso that confers employment, educational and electoral rights but stops short of granting land rights. This would heal old wounds without opening new ones and would effectively sidestep the emotive land issue. Speaking of land laws, it is worth noting that several states prohibit, or add riders to, land ownership by 'outsiders'. Himachal Pradesh, for instance, does not allow non-Himachalis to purchase agricultural land. Again Arunachal Pradesh, Mizoram, Nagaland etc. disallow land ownership by non-residents. At the risk of drawing parallels, like them, Jammu and Kashmir too has fiercely guarded the rights of its citizens, as is evident from the 1927 State Subject Notification, that pre-dates the state's accession and from which the rights being challenged today ensue. Equally, while this position withstands scrutiny vis-à-vis other Indian citizens, mulling over the status of the state's refugees is well warranted. Opponents of Article 35A have also made an impassioned plea on behalf of Kashmiri women, claiming the article discriminates against their children, depriving them of permanent resident (PR) status if their mother chooses to marry a non-Kashmiri man or 'outsider', thus striking at the very roots of Articles' 14, 15, 16 and 21 of the Indian constitution. Some propagandists have argued that in the aftermath of the 2002 Susheela Sawhney case, though Kashmiri women marrying outsiders would retain their PR status with its concomitant rights and benefits, the same would not extend to their children and on their demise, the immovable property held by them would be escheated back to the state. This claim is misleading and factually inaccurate. In the State of Jammu and Kashmir vs Susheela Sawhney, the question pertained to whether a Kashmiri woman, on marriage to an outsider, forfeits her PR status and the right to hold immovable property. This involved a reading of the 1927 notification that defines a 'state subject' and forms the basis of the definition of a permanent resident. The court, in its judgment, cleared the air by upholding the rights of Kashmiri women, regardless of their marital status. It said Note III of the 1927 Notification that was being relied on, did not in fact apply to women who were permanent residents by birth at all. More importantly, while the question of their children was not raised, it affirmed inter alia that the descendants of state subjects, by virtue of Note II, whether male or female, would retain their PR status regardless of their marriage to a non-state subject. This effectively renders the 'equality argument' null and void. However, despite the judicial pronouncement, statutory confusion prevails primarily because the state legislature has not amended the law to this effect. In early 2017, a committee was set up on governor N. N. Vohra's suggestion, to look into the matter, though it goes without saying that it would serve the state government well to make the due legal revisions, thereby dispelling unnecessary fears in this regard. The latest attack by RSS chief Mohan Bhagwat in Jammu, where he stressed that 'discriminatory provisions' like Article 35A must go, shows that the clamour for doing away with the article is growing stronger. There is a genuine fear that right-win political propaganda could end up undermining what is essentially a key legal right. The onus of action then is clearly on the state government and not just because legally the ball is in its court. The ruling BJP at the Centre, despite being an alliance partner in the state with the PDP, chose to favour a 'debate' over the article rather than laying the ghost of the controversy to rest. Statements by its political leaders as well as ideological mentors like Bhagwat promise turbulent times ahead with the PDP finding itself squarely in the line of fire. Twice before, the country's top court has touched upon the subject, but the present petition is seen as decisive in that the judgment will have several ramifications, not least of all on the coalition in Jammu and Kashmir between two unlikely allies. Sheikh Attar and Palvi Singh Ghonkrokta are freelance writers and can be reached at sheikhathar01.sa@gmail.com and palvighonkrokta@gmail.com.