Article 35A: Upholding a Constitutional Provision

Md. Sadiq

19 August 2018

It is curious that the latest round of agitation in the Kashmir Valley fomented by Separatists who seek secession from India are actually supporting a provision of the Indian Constitution.

Section 35A of the Constitution was hurriedly and opportunistically added through the expedience of a Presidential Order in May 1954. Petitioners are now arguing that the Article discriminates against the other citizens of the country for they cannot own immovable property in the State nor can they get jobs and scholarships.

Article 35A of the Indian Constitution which provides for special status for the permanent residents of the state has become a rallying point for Separatists and their supporters in the Valley.

In fact, so emotive has the issue become that even mainstream politicians swear by the Article and warn that tampering with it could lead to the separation of the Kashmir Valley from India. Others have termed the Article the "soul of accession". In other words, all those supporting Article 35A also support the state's accession to India as well as the Indian Constitution.

The hypocrisy of this attitude is however difficult to stomach especially given that the Separatists have always loudly and consistently maintained that they don't give a fig for the Indian Constitution.

But now they are using this very same Constitution to shore up their moth-eaten campaign against India. The immediate excuse is the Supreme Court of India hearing petitions challenging the legal validity of Article 35A.

National Conference leader and former Jammu and Kashmir chief minister Omar Abdullah sarcastically tweeted that those out to defend Section Article 35-A were tacitly accepting that future of the state lies within the Constitution of India.

The Separatists claim the petitions challenging the Article's validity are a “well-planned assault” on Kashmir. The Joint Resistance Leadership comprising Syed Ali Shah Gilani, Mirwaiz Umar Farooq and Mohammad Yasin Malik have organised a series of protests against the Supreme Court hearings. Interestingly, these very same personages do not make the least mention of the demographic changes brought about in Gilgit-Baltistan by the Pakistani authorities who have settled thousands of outsiders mainly Pathans in the district to outnumber the locals.

While Kashmiri politicians, both separatist and mainstream, have been focusing on the fear that any dilution of Article 35A would lead to the influx of outsiders and the consequent dilution of the Kashmiri population, the fact is that a number of aspects of the Constitutional provision are in fact contrary to the basic tenets of human life and dignity.

Hundreds of thousands of refugees from the time of the Partition of the country in 1947 remain without political and economic rights in the state because of this provision which relates to a perverse notion of original state subjects.

Worse, its provisions militate against women's rights and do not give any property or other basic rights to women who marry outsiders. These kinds of provisions in today's day and age are completely antithetical to the notion of human rights and should be condemned across the board. Moreover, the xenophobia inherent in this Article is at complete variance with the idea of free movement of people all over the world. Even the United States of America under President Donald Trump does not have such stringent provisions against outsiders. The present laws in Kashmir against outsiders and settlers are the most regressive in the world. Such laws can only be invoked by a people lacking self confidence and vigour not by the robust and rising.

However, due to the sheer opportunism of Valley based politicians the issue is wrongfully being portrayed as one on which the entire future of Kashmir depends.

The mainstream political party, National Conference, an opportunistic organisation that has milked the state for decades has decided to make the Article 35A a political issue as well. It has filed an intervention plea in the Supreme Court supposedly to fight against any fiddling with the State's special status and unique political identity.

Not surprisingly the issue has become highly sensitive and has become a law and order problem as well. However, by suppressing the rights of others including helpless communities we find in Jammu region and the plight of people who have lived for decades in the state without rights, neither the separatists nor the mainstream parties will find peace of mind in the long term. Obscurantist policies can neither benefit the people nor bring lustre to a movement that relies on hypocrisy, falsehoods and violence. One wrong cannot undo another.

Md Sadiq

19 August 2018