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  • Shantanu Dubey

Article – 35A: Wandered off its Path

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 – Ms. Pallavi Choudhary (Student NLUO)

With the sunset of British Empire in India, Muslims demanding a separate country and Hindu majority accepting this, Kashmir, rejecting the idea of separation based on religion, was formed as a semi-independent country ruled by Hindu Dogra King.

Today, Article 370 forms the bedrock of constitutional relationship between J&K and the rest of India. It was a temporary clause initially incorporated to benefit the residents of the state by granting autonomy to the state. However, using this freedom, J&K has excluded applicability of a number of laws into the state such as the Indian Penal Code and has accepted some with major modifications. A stark example of the same is while preamble of the Indian Constitution refers to India as a “secular” nation, the preamble of J&K Constitution does not.

Article 35A was introduced in the Indian Constitution by way of a Constitution (Application to Jammu and Kashmir) Order, 1954 issued under Article 370 of the Constitution of India which empowers the state legislature to frame laws that cannot be challenged on grounds of violating Right to Equality conferred on people from other states of the country also giving absolute power to grant citizenship and decide who a ‘permanent resident’ is. The most affected class are Women and Refugees from Pakistan who are considered Indian Nationals but not citizens of the state. Only permanent residents are entitled to special rights and privileges such as to acquire land, settle, get government jobs and scholarships in the state. Thus, a Pakistani national or any other Indian citizen cannot buy property and settle in the state. As a result, various rights of outsiders are violated such as right to property, right to education, right to govt. jobs, right to vote, right to take a bank loan etc. In a way, it declares all Indians persona-non-grata in the state of J&K.

Since the article empowers the state legislature to define privileges of its citizens, the Jammu and Kashmir Legislative Assembly passed the Permanent Residents (Disqualification) Bill, 2004 also called ‘the daughters’ bill’ that seeks to deprive women of their permanent residential status and hence are disqualified from enjoying rights and privileges in case they chose to marry a person who is not a J&K subject. Till date, the J&K Government issues certificates of ‘Permanent Resident’ to females with a clear stipulation that the same shall remain “valid till marriage”. This is a highly discriminatory provision in absence of any such derogatory stipulations in certificates of male residents.

There is a notion that Article 35A should not be abrogated because it protects interests of J&K residents. However, the truth is otherwise. An article like this not only affects the rights of rest of citizens of India but simultaneously forces the residents of J&K to continue living separately in the state isolated from the innovative and entrepreneurial India. Being a sensitive topic, this is indeed not an easy decision for the Indian Judiciary but it is high time we repeal provisions that have a ‘separatist tendency’ and bring the people of J&K under the same roof.

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