Article 35-A and August 6

Published at August 03, 2018 12:05 AM 0Comment(s)2049views

Muneer Ahmad Magry


Article 35-A and August 6

mmagry@deakin.edu.au

Article 35-A in Indian Constitution is a privilege that guarantees special rights to the people of Jammu And Kashmir State. For decades the privilege has been uncontested as the arrangement was made keeping in view the manner in which accession of the state took place. It came into effect through a 1954 Presidential Order under Article 370 (1) (d) of the Constitution. At the time of accession of J&K to Indian Union, the negotiations regarding J&K’s political relationship with Delhi was firmly based on granting this special status to the state. The article empowers the J&K assembly/legislature to define states’ “permanent residents” and confer on them special rights and privileges in public sector jobs, scholarships, acquisition of property in the state and other public aid and welfare. At present, there is uproar across the nation on the special privilege enjoyed by the residents of J&K, while as some sections and groups are equivocally demanding its abrogation without contemplating the aftermath and repercussions. Such demands may serve their individual interests but the state and particularly the valley will advance towards tyranny. It must be noted that Jammu and Kashmir is not the only state enjoying special status but there are other states like Nagaland (371A) and Mizoram (371G) that also were granted special privileges. 

Why is Article 35-A debated?                                                                                                   

An NGO called “We the Citizens” challenged 35-A in SC in 2014 on grounds that it was not added to the Constitution through amendment under Article 368. The points made by the NGO are:

  • It was never presented before Parliament, and the parliamentary route of lawmaking was bypassed.
  • It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and J&K was never accorded any special status in the Constitution.
  • Article 370 was only a ‘temporary provision’ to bring normality in Jammu and Kashmir and strengthen democracy in the State.
  • Article 35-A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”.
  • Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.
  • In another case in SC, Article 35-A restricts the basic right to property if a native woman marries a man not holding a permanent resident certificate.
  • The Supreme Court has indicated that the validity of Articles 35-A and 370 may be decided by a Constitution Bench.

Present discourse and outcomes

On August 6, 2018 the Supreme Court is set to decide the fate of Article 35-A. But hitherto it has gained all attention across the nation particularly in Kashmir valley. Various outfits across the political and apolitical spectrums are out with their rhetoric’s for safeguarding the same and there have been already agitations all across the valley. Some established outfits are also claiming to put forth the mass agitations if the results/decision is not in favor of people’s demand.

As we are witnessing mass repression across the valley, the routine brutalities and now this legal onslaught certainly asserts that the valley is passing through a very tough phase and the decision on 35-A will have a deep impact on the valley.

It is also presumed that in the recent breakup of PDP-BJP alliance government in the state it must have been a point of contention. In Kashmir, it is said that the people smelled the rat when the alliance was shaping up. The conflict has made Kashmiris restive.

According to some news reports Honorable Governor wrote to Home ministry to put a halt on the decision until a civilian government takes over the reins. The reaction so far can be summed up as-- the time is not favorable to decide the fate of Article 35-A now and also not in even later. It is a fundamental right we the people of state possess and it should be noted that accession with Delhi was based on this Special Status. Moreover this article acts as a bridge between JK and the rest of the country. Tinkering the same will result in severing of the arrangement and also can lead to demographic changes. Now, if the Center is seriously looking forward to return peace and normalcy in the valley then it need not put a spark in the powder keg. The whole exercise will also showcase how rest of India and Center is aligned towards J&K particularly the valley. Before taking any call, an imminent need is to have a detailed deliberation on Article 35-A in the wide spectrum of political parties, intelligentsia and the civil society at large as we are aware of the fact that Article 35-A is not only a constitutional or legal issue, it is a larger socio-economic and political issue. So, the Centre needs to take all political parties and establishments, folds, civil society along for protecting the rights and privileges of the people of the state.

 

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