Brig Anil Gupta
Rather than educating the innocent citizens of the state, the leaders of JKNC are trying to create a scare among the masses by falsifying the facts and through misrepresentation of the effect of Article 35A of the Constitution of India (COI). The fact that the separatists, soft-separatists and mainstream politicians in Kashmir have come on one page on the issue of Article 35A, clearly illustrates that they have been fooling the Kashmiris till now by claiming to be different identities with different ideologies but in fact operate on a common agenda of exclusivity and keeping Kashmir detached from rest of the nation to deny its citizens dividends of peace and development.
In February 1954, J&K Constituent Assembly ratified the State’s accession to India. Thus, the assurance given to the people of India was fulfilled. In pursuance of this ratification, the President of India promulgated the Constitution (Application to Jammu & Kashmir) Order, 1954 placing on a final footing the applicability of the other provisions of the Indian Constitution to J & K and accorded legal sanctity to Delhi Agreement. Sections 2(3) and 2(4) of the Order made Part II of the COI dealing with Citizenship and Part III dealing with Fundamental Rights applicable to the State of J&K. However, it conferred powers to the State legislature to make special provisions for the permanent residents of the State and for that purpose Section 2(4)(j) of the Order inserted Article 35A in the Constitution. Thus, contrary to popular belief it is the Presidential Order 1954 and Article 35A leading in turn to the State Constitution that provide special status to the State and debar other Indians from acquiring property in the State. The manner in which Article was included in the COI as an addendum violating Article 368 of the Constitution is matter of legal dispute and has been challenged in the Supreme Court of India.
Much hullabaloo has been created in the Kashmir Valley by the vested interests to create an atmosphere of suspicion through unfounded, presumptive provo-cative statements by leaders of different shades.There is no justification of the Bandh call on 05-06 August since on 6 August, Supreme Court is only going to hear the case and decide whether it should be transferred to a Constitutional Bench as requested by Government of India. It may also accept additional appeals on the subject that day. No verdict is to be given on this date. Hence ‘tinkering’, ‘altering’ or ‘deletion’ are all figments of imagination of these self- seekers who are trying to provoke and sentimentally exploit the Kashmiris so that they can once again set Kashmir on fire to please their akas across the borders. Article 35A does not benefit the common citizens at all but to only those self-seekers who have exploited it to the hilt to fill their coffers along with encouraging separatist and militant tendencies to suit their vested interests. The myths created by these self-seekers need to be destroyed so that the ordinary citizen of the state is able to make his own judgement and is not subjected to emotional exploitation. It is highly hypocritical and deceitful on part of those who call themselves separatists and are opposed to the COI are now threatening to launch an agitation to safe guard a provision of the same Constitution in form of Article 35A.
The first myth being spread is that tinkering with the article will affect accession of the state with India. There can be nothing farther from the truth. Accession of the State was done by the Maharaja in October 1947 as the sole authority to do so under Government of India Act 1935 and Indian Independence Act 1947 passed by the British Parliament. Both acts are now obsolete. Article 35A was inserted in the COI in 1954 through a Presidential order, which is the subject of dispute. The two are not inter-connected since accession took place much earlier under different statutes. The accession of the State is guaranteed vide Article 1 of COI and Article 6 of State’s Constitution. Certain people take the plea that Article 370 and 35A act as a bridge between Kashmir and rest of the nation. When two rivers join a sea they assumes the name of the sea, thereafter no bridges are required and there is a seamless flow into or from the sea. Where the question of a Bridge is when J&K is an integral part of Republic of India as enshrined in the COI?
The next myth is that they are continuing with the legacy of Maharaja Hari Singh who enacted the State Subject Law in 1927. Those who deceitfully threw out the Maharaja from the state and ensured that all symbols of Dogra Rule and heritage are obliterated are today seeking cover behind a statute enacted by him to protect the citizens of his kingdom. Maharaja’s visionary statute has been adopted only in part by deleting part 3 and 4 of the Act, which makes it discriminatory. J&K is no more a kingdom and it is highly discriminatory in a democratic set up to have two types of citizens namely State Subject and Non- State Subject in the same state with no mechanism of converting Non-State Subjects to State Subjects as existed in 1927 Act of Maharaja in the form of ‘Riyatnama’ and ‘Izazatnama’.
Another myth that its abrogation will open flood gate of people from other parts of India and deny the jobs and other facilities to the locals is a big fallacy. In fact the reverse is true. The abolition of the act will enable not only large scale investment generating much needed employment in tourism and other industry but will also enable the state to provide better services with super specialist doctors, eminent professors, luminaries in specialist fieldswilling to work in the state. Doors will be opened for revenue generating and pollution free industries like BPOs,IT and machine tools. Our universities can open new and modern departments. Improved healthcare facilities will be available to the citizens.
The ridiculous statements like our police will be flooded with Punjabis and Haryanavis are only meant to create panic among the youth and is far from the truth. How many of our youth have got enrolled in the police of other states. Every state ensures and safe guards the interests of its youth.The rights of the citizens of the state will still continue to be protected as is done in case of 11 other states. There is no 370 or 35A in those states but the rights of their citizens are safeguarded through various statutes made by their respective states depending on the need to protect culture, land, employment and education.
Another myth is that its abrogation will change the demography of the state. On the contrary, it would prevent state sponsored demographic invasion of Jammu province. If that be so why West Pakistan refugees, Gorkhas, members of Valmiki community who have been living in the state for generations now have been denied citizenship rights and subsequent benefits till date, while large number of Kashmiri Muslims have bought properties in Jammu as well as Kashmir and are now heading towards Ladakh. The Tibetan and Uighur Muslims from Xinkiang have been granted permanent citizenship ignoring the same Act.
Lastly, the Article 35A also smacks of gender inequality since it violates the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property, if the woman marries a non- state subject. Imagine a male marrying even a Pakistani girl does not lose his citizenship but his Pakistani wife becomes state subject as well and their children enjoy all rights of inheritance but the same is not true for our daughters and sisters marrying even in other parts of India leave alone a foreign country. Incidentally, the two main separatist leaders namely Yasin Malik, Mirwaiz Farooq are married to a Pakistani and American, Dr Farooq Abdullah is married to a British. Not many readers would know that this clause was inserted later through an administrative order by the Revenue Minister in 1963 where he directed all the District commissioners to endorse the State Subject of all females with “Valid only till marriage.”
Since, the very validity of the Article has been challenged in the Supreme Court, it is advisable to let the law take its own course and have faith in the nation’s judicial system. Meanwhile, all political parties need to exercise restraint and not vitiate the atmosphere through false, motivated and provocative statements. Peaceful discussions, debates and seminars should be organised state-wide to educate the people with merits and demerits of the Article so that unbiased public opinion can develop.
(The author is a Jammu based political commentator, columnist, security and strategic analyst)
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