Why Are Kashmiris Anxious About Article 35A of the Constitution?

Article 35A allows J&K’s permanent residents to buy / own immovable property while disallowing ‘outsiders’.

Separatist leaders shout slogans as they lead two separate protest rallies in support of Article 35A, in Srinagar. Image used for representational purposes.

(Photo Courtesy: Twitter / Umar Ganie / Altered by The Quint)

The Supreme Court, on August 6, is scheduled to hear the petition challenging the constitutional validity of Article 35A.

Article 35A of the Constitution gives special rights to Jammu and Kashmir’s permanent residents while also disallowing non-permanent residents from buying or owning immoveable properties. Non-permanent residents are also excluded from state government jobs and scholarships.

A Delhi-based NGO – We the Citizens – had filed a petition arguing the “unconstitutionality” of Article 35A, terming it discriminatory in nature, as it was meant to be only a temporary provision.

What’s the Row About?

The Supreme Court had earlier deferred the hearing of the bunch of petitions challenging the provision of Article 35A in Jammu and Kashmir. With this, the deeply tense state of affairs in Kashmir had eased, but not the innate anxieties.

With the arrival of the hearing date, the issue has again agitated politicians, academics, state bureaucrats, lawyers, journalists, professionals of all hues, and other civil society members, who have joined efforts to protect the validity of Article 35A .

Kashmiri political parties have all warned that they will close ranks against any attempts to dilute this constitutional provision, forgetting their power and ideological battles.

Prominent political voices in Kashmir are speaking in unison on the issue, discussing ways and means for protecting Article 35A on political and legal fronts.

In the run up to the SC hearing, meetings were being held almost daily on the issue in Srinagar, and other cities and towns of Kashmir.

Members of civil society had collectively and individually urged the Governor to defend the provision in the Supreme Court by hiring top legal luminaries. There is an overwhelming feeling in Kashmir that Article 35A has been challenged in the Supreme Court to change the demography of Kashmir, and to deprive the Kashmiris of their right to land and employment in the state, among other benefits.

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Mainstream political groups in Kashmir had contemplated approaching the Supreme Court, to consider them as ‘parties’ in this case. In meetings that have been held in Srinagar to discuss the issue over the last few days, senior Kashmiri politicians said that “it is their duty to protect the constitutional provisions guaranteeing special position to the state”.

Hurriyat Chief Mirwaiz Umar Farooq had earlier warned of mass agitation in Jammu and Kashmir if the special rights accorded to the state by the Constitution of India were taken away. The Joint Resistance Leadership (JRL) of Kashmir had called for shutdowns on 5 and 6 August in protest against attempts to question Article 35 A.

On Sunday, 5 August, authorities decided to temporarily suspend the ongoing Amarnath Yatra from Jammu to the cave shrine in the Kashmir Valley for two days due to a separatist-called protest shutdown. Public transport has been affected as well, with very few private vehicles plying in Srinagar city and other district towns in the Valley, according to officials and residents.

Roots of this Conflict

In July 2014, an NGO named ‘We the citizens’ filed a petition in the Supreme Court challenging the validity of Article 35A on the ground that it was inserted in the Indian constitution through a Presidential order, rather than after complying with the elaborate procedure prescribed under Article 368 of the Indian Constitution.

Subsequent to this petition, three more classeses of persons filed separate petitions challenging the validity of Article 35A, on various grounds.

Charu Wali Khanna, a lawyer and former member of the National Commission for Women, challenged Article 35A and also Section6 of the J&K Constitution (which deals with “permanent residents’ provisions” of the state). Her argument was that both these clauses deny property right to a woman who had married a non-state subject, and also denied the same to her children. West Pakistan refugees challenged Article 35A on grounds of discrimination in spheres like acquisition of property, service and voting rights.

The hearing by the Supreme Court on 6 August comes amidst the lack of an elected government in the state. Jammu and Kashmir was recently placed under Governor’s rule after the BJP pulled out of the coalition government with PDP.

What is Article 35A?

Article 35A, which was added to the Constitution by a Presidential Order in 1954, accords special rights and privileges to the citizens of J&K.

The Article empowers the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provides special rights and privileges to those permanent residents. The State Subject Law ‘confers rights to the citizens of the state in respect of their exclusive claim to the acquisition, sale, lease, mortgage of immovable property, claims for service and scholarships, allotments of housing plots, adult suffrage, membership of the local bodies and eligibility for the benefits under self-employment.’

(The writer is a social activist from Jammu and Kashmir and can be reached at @AfanYesvi. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)