Article 35A: Abrogate fraud on Indian nation
by Hari Om on 20 Oct 2013 7 Comments
Thousands of Hindus, mostly Dalits, migrated to Jammu from West Pakistan in the wake of the communal partition of India in August 1947 to save their lives, dignity and culture. Ever since then, they have been struggling very hard to obtain citizenship rights in order to lead a dignified life as Indian citizens and enjoy all the rights available under the Indian Constitution and Jammu & Kashmir Constitution, but in vain.


They hold the successive Kashmiri dominated governments in the State responsible for their absolutely miserable life and hold Article 370 in contempt as an anti-democratic instrument in the hands of the Valley’s political elite which uses it brazenly to deprive them of their fundamental rights which are available to all Indians, barring them, despite their over 65-year-long stay in various parts of Jammu province. This means that they do not have the right to obtain jobs under the State Government, no right to acquire immovable property anywhere in the state, no right to vote in the Assembly and local-bodies’ elections, no right to higher and technical education, no right to bank loans, and so on.


Their oft-repeated argument that the “pampered and appeased” Kashmiri ruling elite along with Article 370 are responsible for their wretched life is partly correct and partly incorrect. It is correct to the extent that the Kashmiri-dominated Jammu & Kashmir Constituent-cum-Legislative Assembly which was formed in 1951 after wholesale rigging, exploited Article 370 to the hilt and adopted Sections 6, 8 and 9 for incorporation in the Constitution under which the State was to be governed in the future. (The Jammu & Kashmir Constitution was implemented on January 26, 1957.) Article 370 gave the solitary State of Jammu & Kashmir the right to have a separate Constitution and separate flag, but nowhere does it say which category of Indians will enjoy all citizenship rights in Jammu & Kashmir and which section/sections will not.        


Section 6 as adopted and strictly enforced by the State Government reads: (I) “Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954, (a) he was a state subject of class I or of class II, or (b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to this date” and (II) “any person who, before the fourteenth day of May, 1954 was a State Subject of class I or of class II and who, having migrated after the first day of March, 1947, to the territory – now included in Pakistan, returns to state under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State”.


As for Sections 8 and 9, the former gives the State Legislature the right to define Permanent Residents and the latter empowers the State Legislature to alter the definition of Permanent Residents.


These provisions in the Jammu & Kashmir Constitution have been working to the detriment of Hindu refugees from West Pakistan, who number about 1.5 lakh. They make a valid point when they bemoan these provisions and accuse the Kashmiri ruling elite of inflicting pain and injustice on them. The Valley leadership has consistently and vehemently opposed the refugees’ democratic and human demand seeking full citizenship rights on two specific grounds.


One is that grant of citizenship rights will change the demographic landscape of Jammu & Kashmir and erode the “distinct identity” of Kashmiri Muslims. The other is that the accommodation of their demand will enhance representation of Jammu province in the Legislative Assembly. Indeed, the Kashmiri leadership’s whole stand on the issue is narrow, parochial and regressive.


Yet, it would be wrong to put the entire blame on the Kashmiri-dominated Jammu & Kashmir Constituent Assembly and the State Government. The real culprit was the Government of Jawaharlal Nehru. It subverted the basic structure of the Indian Constitution in May 1954 to deprive all Indian citizens, including refugees from West Pakistan settled in Jammu province, of their fundamental right to exercise all rights in Jammu & Kashmir.


While making unjust, invidious and humiliating distinctions between Indian citizens inhabiting States barring Jammu & Kashmir, plus refugees from West Pakistan settled in Jammu, and the so-called Permanent Residents of the State, the Nehru dispensation also made sure that the Permanent Residents of Jammu & Kashmir shall exercise all rights all over India.


What did the Government of Jawaharlal Nehru do in May 1954? That black month, it amended Article 368 without taking the Indian Parliament into confidence, though Parliament alone had the power to amend or not amend the Constitution, to amend Article 35 and add to it the atrocious Article 35A which was enforced in Jammu & Kashmir through the Constitution (Application to Jammu & Kashmir) Order, May 1954.


Article 35A reads: “Saving of laws with respect to permanent residents and their rights: Notwithstanding anything contained in this (Indian) Constitution, no existing law in force in the State of Jammu & Kashmir, and no law hereafter enacted by the Legislature of the State – (a) defining the classes of persons who are, or shall be permanent residents of the State of Jammu & 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”.


Article 35A enabled the Jammu & Kashmir Constituent Assembly to deny citizenship rights to the refugees from West Pakistan and all other Indians, barring Permanent Residents of the State. Armed with absolute power, the Jammu & Kashmir Constituent Assembly adopted Section 6 which said no persons who had crossed over to the state after May 1944 will be considered eligible for citizenship rights. 


In fact, Section 6 meant two things: Denial of citizenship rights to the Indians who were not Permanent Residents of the State as per the definition of Permanent Resident of the State and provision to grant full citizenship rights to those who migrated from the State to Pakistan on or after March 1, 1947 and adopted Pakistani citizenship in case they returned to Jammu & Kashmir (meaning Muslims).


If what the Nehru Government did to enforce Article 35A in Jammu & Kashmir was unconstitutional and a fraud on the Indian Constitution and the Indian nation, the concealment of these unconstitutional steps was all the more despicable. His Central Government hid the amendments from the public by not mentioning the same in the main body of the Constitution. The unconstitutional amendments to Article 368 and Article 35 were mentioned only in Appendix-I and Appendix-II, respectively, so that they could escape public attention, and this is what actually happened.


In sum, it can be said that the Jawaharlal Nehru regime first of all conspired against the refugees from West Pakistan, and then further hatched a conspiracy against all Indian citizens in order to pander to communalists in Kashmir by subverting Articles 16 and 19 of the Indian Constitution which deal with the rights of Indian citizens, including fundamental rights.


Article 19, for example, says that “All citizens shall have the right (a) to freedom of speech and expression, (b) to assemble peacefully and without arms, (c) to form associations or unions, (d) to move freely throughout the territory of India, (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property; and (g) to practice any profession, or to carry on any occupation, trade or business”.


It follows that what is needed is not just the abrogation of Article 370 but also the revocation of Article 35A. This is the only course left to enable the refugees from West Pakistan and other Indians to exercise citizenship rights in Jammu & Kashmir and integrate it fully into India.

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