Article 35-A: The Case For A Non-Partisan Stand

The Political environment in Jammu and Kashmir is going to be tense, full of unease as the next date for a hearing in the Hon­ourable Apex Court of India, approaches. The case comprises of five petitions challenging the validity of Article 35-A.

This article protects the demographic status of the Jammu and Kashmir state in its prescribed constitutional form. Kashmiris are apprehensive that any moves to abrogate Article 35-A would open the gates for a demographic transformation of the valley, an objective advanced by the Sangh Parivar groups as an ideal solution to the Kashmir issue.

Article 35-A of the Indian Constitution empow­ers J&K state’s legislature to define ‘permanent resident’ of the state and provide special rights and privileges to these permanent residents. It was added to the Constitution through a Presidential Order, ie, The Constitution (Application to Jammu and Kashmir) Order, 1954 — issued by the Presi­dent of India on 14 May, 1954, in accordance with Article 370 of the Indian Constitution, and with the concurrence of J&K‘s Government.

In July 2015, The J&K Study Centre first came up with the idea to challenge Article 35-A in the Su­preme Court. A petition was filed in the Delhi High Court against the Article. According to constitu­tional expert, AG Noorani, all the legal arguments against the article are groundless; raised by com­munal-minded-majoritarian intentions. He refers to the various articles in the Constitution, that sim­ilarly provide special rights to other Indian states like Nagaland (Article 37-A) and Mizoram (Article 371-G) and notes that there are various provisions in the Indian Constitution which confer special sta­tus to several other states, in varying degrees based on historical reasons — however without any ob­jections raised against them.

‘Article 35-A has been added in the Constitu­tional Application Order 1954, and if it is ques­tioned, the entire order will have to be questioned’

Senior advocate, Zaffar Shah of the J&K High Court says that, ‘Article 35-A has been added in the Constitutional Application Order 1954, and by questioning it, the entire order will have to be ques­tioned’. If the Court rules that these orders are inval­id, this judgment will have to be made applicable to all the Constitutional Application Orders from 1950 till date. They have been used to issue provisions and make changes, which include — replacing the elected Sadr-e-Riyasat (President of the State) with a Governor chosen by the Centre; changing the ‘Prime Minister’ of the state to ‘Chief Minister’; extending the powers of the Supreme Court and Election Com­mission to Jammu and Kashmir; and preventing the State Assembly from making any amendments to the Jammu and Kashmir Constitution.

This process of revoking special status to Kashmir has been an ongoing dilemma which has affected various sectors of the region. Sheri-e-Kashmir Institute of Medical Sciences (SKIMS) Srinagar has special reserved seats. Until last year, the institute was itself conducting the exami­nation for filling up these seats, however from this current academic session the selection process has been allowed under National Eligibility cum En­trance Test (NEET), implying that students from across India are now eligible for applying under super-specialty quota at the institute. Until now there has been no opposition from the state gov­ernment or from SKIMS authorities to the move. This year, 22 candidates were admitted in SKIMS under super-specialty quota out of these selected candidates 14 are non-state subjects.

This is not the first time that special-status of J&K has been fiddled with. Technical education centers and universities have already been under­going such changes. In 2003, the Regional Engineer­ing College (REC) was converted into the National Institute of Technology (NIT). While previously in REC admission was restricted for state subjects, it began accepting students from all over India. More­over the extension of the national examination test to J&K- and the inclusion of the Central Board of School Education into the educational affairs of J&K is an infringement upon its rights.

Whatever, be the result of the Apex Court re­garding Article 35-A, the case is yet another re­minder of how the J&K state is ill-prepared in terms of building a robust political and develop­mental response to such matters. The central gov­ernment in New Delhi has still not filed a counter affidavit regarding the case.While fundamentally this is a political concern-which sits in the heart of the Kashmir issue. It is also a developmental issue with implications on the state’s aspirations of hu­man development.

If the special status of Jammu & Kashmir is di­luted, a large number of aspiring medical and en­gineering students will be left with no option but leaving the state and studying elsewhere, which can be quite costly. Moreover, while the state’s medical and engineering colleges will pave the way for non-J&K Students, it is unlikely that they will choose to work and live in Jammu & Kashmir. In such circumstances, the state’s information tech­nology and health sectors could really face serious issues regarding manpower.

Apart from agitating violent factors, in the al­ready terrorised state- the petition against Article 35-A is a grave threat to the already volatile situa­tion in Indian Kashmir. It requires critical engage­ment, joint consensus and utmost urgency.



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