Dr Ganesh Malhotra
Article 35A of the Indian Constitution is an article that empowers the Jammu and Kashmir State’s Legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents.
“Saving of laws with respect to permanent residents and their rights. – Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:[7]
(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects-
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide,
shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.”
On May 14, 1954, the President of India issued an order called the Constitution (Application to Jammu and Kashmir) Order 1954. It came into effect immediately and superseded the Constitution (Application to Jammu and Kashmir) Order 1950.
Besides carrying out many modifications and changes, this presidential order ‘added’ a new “Article 35A” after Article 35 to the Constitution of India. Addition or deletion of an Article amounts to an amendment to the Constitution. And the Constitution can be amended only by the Parliament as per procedure clearly laid out in Article 368. But Article 35A was never presented before the Parliament of India. This effectively means, in this case, the President bypassed the amending procedure as laid out in the Constitution on India in order to add the new Article 35A. This also means that Article 368 of the Constitution, in its application to Jammu and Kashmir, also got amended.
Article 370 does not authorize the President to add by enacting any new provision in the text of the Constitution of India. Of course, the President of India does not perform the constitutional functions entrusted to him independently, rather acts with the aid and advice of the Council of Ministers headed by the Prime Minister.
The Union Cabinet can only promulgate an ordinance, which automatically expires after six months unless passed by Parliament.
The constituent power to amend the Constitution of India – by way of addition, variation or repeal of any provisions -belongs only to the Parliament under the umbrella of Article 368. This power is an essential constituent function which cannot be effaced or abdicated or handed down to any other agency of the Government, not even the President of India.
It is imperative to debate the constitutional validity of this Presidential order in public domain. Modern day India certainly cannot allow such grievous mistakes of the past to continue to darken the future of its citizens. The communities that have been wronged deserve justice, urgently.
Moreover, processes and procedures have sanctity of their own, particularly when they concern something as serious as amendment of the Constitution. And if the processes and procedures have indeed been given a short shrift, as appears in this case, we should have the guts to question them.
West-Pakistan Refugees
Those who migrated from West Pakistan to the Indian state of Jammu-Kashmir during Partition in 1947 have been living there since last 70 years. But over seven decades later, they are still identified as ‘refugees’ and forced to live in ‘camps’. Even the third generation is tagged as ‘refugees’ and denied rights and privileges that should have been immediately granted to those who were forced to migrate from Pakistan.
Compare their situation with those who migrated from Pakistan to other parts of India such as Delhi, Mumbai, Surat etc. They were rehabilitated with a number of welfare measures such as allotment of houses, jobs etc. In fact, their integration into the mainstream was virtually seamless. Today, they are the rightful citizens of India, enjoying every right and privilege that the Constitution of India confers on all Indians.
After over seven decades of living like bonded labour, these families want to be free of the ‘refugee’ tag.
It is high time the governments give them their rightful place in the democratic set-up and bestow every privilege enjoyed by all Indians by virtue of being citizens of India.
The discrimination
Around 5,764 families consisting of 47,215 persons migrated from West Pakistan to different areas of Jammu Division. They were persuaded by Sheikh Abdullah to settle here and promised them to give State subject. He himself visited all these areas and convinced them to stay here instead of moving towards Punjab. But in 1954 on enactment of Permanent resident law after 7 years of their migration they were told that they cannot be given permanent resident certificate. It’s very strange that retrospective effect was invoked to disable a person but actually retrospective effect is always for enabling purpose. These refugees were able to occupy some land, which was later allowed to be retained by them without conferring upon them the title of land because of their non-permanent resident status. This means they can stay on this land, but cannot sell it or buy any other property.
West Pakistan Refugees (WPR) are mostly from the deprived sections and majority of them belong to the Scheduled Castes and OBC. The J&K law for them means – they can be tillers, labourers, tenants but not land-owners and land-lords. They are not given benefits of the schemes of state for backward sections but they cannot enjoy such schemes of Central Government due to non availability of category certificate with them. They mostly residing near international border are continuous victim of cross border firing.
After seven decades, their population has grown manifold. By some estimates, it’s about three lakh now. It’s obvious that the land they could retain six decades ago cannot be sufficient now. Denied ‘permanent resident status’ in Jammu & Kashmir, WPRs cannot get a job in the State Government.
Members of WPR families cannot get admissions in any state-run professional colleges. They are not even eligible to cast their vote for State Assembly elections. They have no participation in local village panchayats and other self-governing bodies up to the district level. This has brought them down to the level of second class citizens as they have no role in law-making at the state level. It’s very strange that in 1952 state government provided state subject and rights to Uyghur families settled at Eidgah area in Srinagar. State even enacted Resettlement act for rehabilitation of those who left for Pakistan but didn’t bother for those who migrated here and settled with the consent of State.
Is it acceptable that victims of Partition, who entered Indian Territory in the hope of succour, continue to be persecuted at the hands of State and Centre just because one retrograde law i.e. Article 35-A? Is it standards of Human rights being pursued?
(The author is a J&K based Strategic and Political analyst)
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