The brutal killing of CRPF personnel has expectedly raised a political storm in the country. Now people in J & K as well as the rest of the country are asking what is it that has been fundamentally responsible for the unabated violence and instability in the state.
Apart from the better-known Article 370, one of the reasons that has often been cited as responsible for the Kashmir deadlock is the unconstitutional imposition of Article 35 A on the state from above.
Also known as Permanent Residents law, the Article has prevented the natural integration of the state with rest of India.
Why Article 35 A has been unconstitutional from start itself
Against spirit of parliamentary democracy
First, it was incorporated through a presidential order and not passed by the Constituent Assembly. Therefore, bypassing the parliamentary process, the Article undermines the very foundations of the principles of parliamentary democracy.
Arbitrary and Authoritarian
The fact that it was never presented before Parliament, nor added to the Constitution through an amendment under Article 368, while being allowed to come into effect immediately, clearly makes it a rather authoritarian measure. Moreover, it should have lapsed with the dissolution of the state’s Constituent Assembly in 1957 itself.
Exclusivist and discriminatory in nature
The problem is not that the Article confers on Kashmiris special rights and privileges in public sector jobs, acquisition of property in the State, apart from scholarships, public aid and welfare benefits. The problem is that it excludes and bars Indian citizens from outside the state from as basic a right as pursuit of a profession, or buying property or even settling in the state, effectively undercutting the very idea of India. An idea which defines India as although federal in from, a Union of States in spirit. But Article 35 A, rather regressively, not only creates political-emotional gap between Kashmiris and other Indians but also fosters divisive identities and fault lines. For instance, imagine the plight of refugees who migrated to J&K during partition are still not treated as ‘State subjects’ under the J&K Constitution.
In breach of Constitutional provisions
Then by not allowing Indians outside the state to buy property or to settle in the state, the Article is in clear violation of several fundamental rights such as Articles 14, 19 and 21 of the Constitution.
Anti-women nature of the Article
For long, the Article was inherently anti-women since it disqualified them from their state subject rights if they married non-permanent residents. It finally took the J & K High Court in 2002 to deliver a verdict that women married to non-permanent residents will not lose their rights. However, the children of such women continue to have no succession rights.
How the removal of Article 35 A will help
First, its removal will in a single stroke eliminate the artificial divisions between Kashmiris and the rest of India giving effect to the real idea of India – an India which is diverse, pluralistic and unified at the same time. The sight of Kashmiris lining up for recruitment in armed and police forces in the state is a testament to the Kashmiri’s emotional affiliation to the idea of India.
Second, it will boost investment massively in the state which in turn will also give a push to employment opportunities. People are usually disinterested in setting up shop in Jammu and Kashmir because there are no land-owning rights for them.
Third, at the same time, it will not only ‘shut shop’ of local politicians who use it for narrow political ends but also close down the propaganda machinery of Pakistan and separatists who too keep the state perpetually on a boil. The fact that Pakistan seems rattled and is even expressing ‘opinion’ on possible removal of the Article, it unmasks the neighbouring country which has been all along using the provisions of this article to fan flames of separatism in the state.
Therefore, now that over 60 years have passed and the Indian nation has moved ahead on many fronts, the Article in the state has clearly outlived its utility. If we are to see a strong, united and a developed India in the 21st century, it is time that articles such as these are given a deep and final burial – for good.