Unite on Article 35A




Joint Resistance leadership has warned New Delhi  against attempt to change Kashmir demography by scrapping Article 35A. In a statement, the separatist trio of Syed Ali Geelani, Mirwaiz Umar Farooq and Yasin Malik said if the attempt was made to repeal the article, they would ask people to launch a vigorous agitation. They called the apprehended move  “a major ploy to change the basic character of the state’s special status”. Hurriyat statement has followed that of the Chief Minister Mehbooba Mufti who similarly warned the centre against tampering with the all-important Article.  A sense of uncertainty has gripped Kashmir after the Supreme referred the case related to scrapping of Article 35A to a three-judge bench and ordered its listing after six weeks. An RSS linked NGO J&K Study Group has approached the Supreme Court seeking revocation of Article 35A. The state in its counter-affidavit has defended the Article, saying the State has powers under Article 370 (1) (d) to apply Constitution of India to Jammu and Kashmir “with exceptions and modifications and in keeping with Article 35 A”.

The Article 35A was extended to the state through a 1954 Presidential Order which gives protection to the state subject laws in J&K whereby outsiders are not allowed to settle or acquire property in the state. The petitioner seeks the repeal of the “unconstitutional provision” since it was added by Presidential Order and not by approval of the parliament. For Sangh groups, it is Article 35A and not Article 370 which comes in the way of settling Indians from other parts of the country in J&K. They believe that the only way to resolve Kashmir issue is through a sweeping demographic change in the state. According to them,
Article 35A enables the state Assembly of J&K to define permanent resident and to give them special rights and privileges.

Though in past, Supreme Court has dismissed all challenges to Presidential Application Orders, there is no telling about the future. There is a possibility that the court will rule against the article.

Three things are important with regard to Article 35A – It defines permanent residents, restricts employment to permanent residents and confers powers on state legislature’s powers with regard to settlement. So, if the Article 35 A goes, it means the protection available to permanent residents will go and this protection will also go in case of employment and acquisition of property and scholarships.

A successful challenge to Article 35A will thus have far-reaching political and legal fallout. Politically it will be seen as an assault on the Muslim identity of J&K. But there is one more interesting fallout: Legally, if Article 35A goes, so will all the Presidential orders from 1954 to 1975 responsible for diluting J&K’s special status go, resurrecting the Article 370 in its pristine form. Will it come to that point depends how Supreme Court frames its response to the petition. The order, however, can go in any direction. So the political parties and the civil society groups cannot take it lying down and must pro-actively work to challenge this relentless assault on the state’s special status.

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