Clearing Up the Fallacies Around Kashmir's Article 35A

State refugees can be given full citizenship, barring land rights, without undermining J&K's unique constitutional status in any way.

Women walk past police during clashes with stone pelters in Srinagar

Women walk past police during clashes with stone pelters in Srinagar. Credit: Reuters

In 2015, the Jammu and Kashmir Study Centre, an RSS-affiliated think-tank, challenged the constitutional validity of Article 35A in the Supreme Court. Later, the same group screened a documentary that claimed to highlight the article’s discriminatory effect on some groups in the state, along with the plight of Kashmiri women in general.

The documentary did address long-standing grievances – of hapless refugees from West Pakistan, or safai karamcharis of Valmiki basti, or the Gurkha servicemen who had fought wars for Kashmir under the erstwhile rajas.

The question of permanent resident status for those three categories, and others unfairly excluded, has been politically dodged for too long. But it is not the question that drives the movement to scrap 35A.

Amendment rather than abrogation

Essentially, Article 35A provides immunity from legal challenge to any law of the state that confers permanent residents with special rights and privileges. And it is within the state legislature’s power to amend the definition of a ‘permanent resident’. Section 8 of the Jammu and Kashmir constitution clearly states:

“Nothing in the foregoing provisions of this part shall derogate from the power of the state legislature to make any law defining the classes of persons who are, or shall be, permanent residents of the state”.

The language of the section shows that a narrow connotation was deliberately avoided. ‘Or shall be’ implies that future additions were explicitly allowed. Further, ‘Nothing in the foregoing provisions’ covers Section 6 (which defines ‘permanent residents’) setting aside any doubts that altering the definition is within the state government’s purview.

Also read: In Kashmir, Rajnath Singh Offers Dialogue and Assurances on Article 35A

Article 35A is a matter of contention for two reasons. First, for the manner in which it was added to the Constitution – via the Presidential Order of 1954, bypassing prescribed parliamentary procedure. Second, for its discriminatory effects.

While the first question is for the courts to decide, with a petition pending, the fallacy about the role of Article 35A with regard to the inclusion of West Pakistan Refugees (WPRs) and the status of Kashmiri women needs to be set right.

All the same, there is an immediate need to address the situation of refugees in the state. Piecemeal efforts like identity certificates may help secure Central government jobs, but land ownership is a point of serious discord. The dears of change in demographics are unfounded, given that the total number of refugees is merely over a lakh. But regional parties bitter resist the question of granting state citizenship.

A more palatable proposition would be a Chakma-style lead, offering conditional citizenship with a proviso that confers employment, educational and electoral rights, but stops short of granting land rights. This would heal old wounds without opening new ones and would effectively sidestep the emotive land issue.

Kashmiri village women carry baskets filled with water chestnuts after collecting them from the waters of Wular Lake as they walk over the marshy land while wearing wooden boards on foot at Bandipora, about 65 km (40 miles) north of Srinagar, November 5, 2012. Water chestnuts are locally known as "Singada" and are eaten raw, boiled or are grounded into flour after they are dried. Picture taken November 5, 2012. Credit: Reuters/Danish Ismail

Kashmiri village women carry baskets filled with water chestnuts after collecting them from the waters of Wular Lake as they walk over the marshy land while wearing wooden boards on foot at Bandipora, about 65 km (40 miles) north of Srinagar, November 5, 2012. Credit: Reuters/Danish Ismail

It is worth noting that several states prohibit, or add riders to, land ownership by ‘outsiders’. Himachal Pradesh does not allow non-Himachalis to buy agricultural land. Arunachal Pradesh, Mizoram, Nagaland etc. disallow land ownership by non-residents.

Like them, Jammu and Kashmir too has fiercely guarded the rights of its citizens, as is evident from the 1927 State Subject Notification, which pre-dates the state’s accession and from which the rights being challenged today ensue. Equally, while this position withstands scrutiny vis-à-vis other Indian citizens, mulling over the status of the state’s refugees is well warranted.

Confusion regarding the rights of women

Opponents of Article 35A have also made an impassioned plea on behalf of Kashmiri women, claiming that the article discriminates against their children, depriving them of permanent resident (PR) status if their mother chooses to marry a non-Kashmiri man or ‘outsider’, thus striking at the very roots of Articles’ 14, 15, 16 and 21 of the Indian constitution.

Some have argued that after the 2002  Susheela Sawhney case, although Kashmiri women marrying outsiders would retain their PR status with its concomitant rights,  the same will not extend to their children – and on their demise, their immovable property would be escheated back to the state.

This claim is misleading and factually inaccurate. In Susheela Sawhney, the question was whether a Kashmiri woman, on marriage to an outsider, forfeits her PR status and the right to hold immovable property. This involved a reading of the 1927 notification that defines a ‘state subject’ and forms the basis of the definition of a permanent resident.

Also read: Battle for Article 35A in Jammu and Kashmir Has Become More Political Than Legal

The court, in its judgment, cleared the air by upholding the rights of Kashmiri women, regardless of their marital status. It said Note III of the 1927 Notification did not in fact apply to women who were permanent residents by birth at all.

The question of their children was not raised, but the court affirmed inter alia that the descendants of state subjects, by virtue of Note II, whether male or female, retain their PR status regardless of their marriage to a non-state subject. This renders the ‘equality argument’ null and void.

Statutory confusion prevails, however, primarily because the state legislature has not amended the law to this effect. It would serve the state government well to make the due legal revisions, thereby dispelling unnecessary fears in this regard.

Until then, there is a genuine fear that right-win political propaganda could end up undermining what is essentially a key legal right.

The onus of action then is on the state government, and not just because the ball is in its court legally. The ruling BJP at the Centre, despite being an alliance partner in the state with the PDP, chose to favour a “debate” over the article rather than laying the ghost of the controversy to rest. Statements by its political leaders as well as ideological mentors like Bhagwat promise turbulent times ahead with the PDP finding itself squarely in the line of fire.

Twice before, the country’s top court has touched upon the subject, but the present petition is seen as decisive in that the judgment will have several ramifications, not least of all on the coalition in Jammu and Kashmir between two unlikely allies.

Sheikh Attar and Palvi Singh Ghonkrokta are freelance writers and can be reached at [email protected] and [email protected].