Art 35A had to go since it was used more as distancing tool than for the welfare of permanent residents of J&K

What to talk of some special good, even permanent residents of J&K have been the victim of Art 35A

Daya Sagar

Prime political leadership of J&K that had all these years held the reins of governance in J&K ( and had been mostly from Kashmir valley) upto 2018 had been describing ‘Art 35A’ of Constitution of India which had been made part of Constitution through a Presidential order, C.O 48 of 14 -05-1054 i.e Constitution ( Application to Jammu and Kashmir) Order of 1954 issued in exercise of the powers conferred by clause (1) of Article 370 by adding this article asa new article after Article -35 as a very special provision for the Indian Citizens in the category of the Permanent Residents of J&K (PR oJ&K) as were also described in Section-6 of J&K Constitution. It would not be an over statement in case it is said the action of adding a new Art 35A’ in Part III of Constitution of India was in a way amending the Constitution of India with a Presidential order.{ <” 4 (j) : Part-III.” After article 35, the following new article shall be added, namely: “35A. Saving of laws with respect to permanent residents and their rights.- Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and 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 and 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.”} Yes the said article did appear placing the Indian citizens named as PR of J&K at a superior pedestal in comparison to other Indian citizens and so going by that one would hope that there might be ‘very very’ special and beneficial local laws & rules in J&K making atleast ( if not of all Indian citizens ) the living of Permanent Residents of J&K very -very special and better than the residents of other Indian states but the position had not been like that since even some Permanent Residents of J&K were denied some routine betters that could be made available even to other Indian citizens in terms of regular provisions of constitution of India, not only that even some discriminatory local prevalent laws / rules of pre independence times ( 1947) had been retained for PRoJ&K which were discriminating even amongst the Male & Female permanent residents of J&K and laws were made to even discriminate amongst the Displaced Permanent Residents of J&K ( erstwhile State Subjects of J&K) from areas occupied by Pakistan in 1947 staying in J&K and those staying in other Indian states. Instead of doing some extra special good to PRoJ&K through the delegations made by constitution of India in the name of Art in favour of J&K state Government & Legislature in terms of Art 35A were more used as a tool/ symbol to distance or to project that J&K was not as good an Indian State as is Punjab or UP. No doubt as per local laws only permanent resident of J&K could own land in J&K and lay hands on the State Government services ( restrictions were not in Government Universities) / take admission in J&K Government run professional colleges. But the laws regarding exclusive right to join state government services & right to own land in J&K too were more used to project some ‘distancing’ and often some leaders linked that be there due to some ‘conditional’ accession of state to India in 1947 where as that was not the case. The bads of the then prevailing local laws / deficiencies in the local laws / policies that had been putting to disadvantage even some Permanent Residents of J&K could be briefly summarized as (i) The Woman Permanent Residents were denied the right to chose a life partner since in case a PRoJK girl married a person prom Punjab or UP her husband and children would not be treated as PRoJK (ii) There was no reservation in Legislative Assembly of J&K for Schedule Tribe (ST) PRoJK even when Art 35A was there where as in other Indian states ST reservation was there (iii) over 5300 Families of displaced ‘state subjects of J&K” from occupied by Pakistan in 1947 described as POJK(POK) Displaced Persons in terms of order No. 1476-C of 1950 dated 16.12.1950 (issued by Sheikh Mohd Abdullah in 1950 , the then PM of J&K) were not considered as DPs of POJK for some support schemes / provisions POJK DPs (iv) J&K Legislative Assembly passed The Constitution of Jammu and Kashmir (Tweniy-Ninth Amendment) Act, 2002 (23rd April_ 2002) so to amend Section-47 (3) of J&K Constitution there by putting practically a bar on fresh delimitation ( distribution) of single member segments in the Legislative Assembly atleast till 2031 thereby further deferring the possibility of correcting the wrongs done since 1957 in not rightfully / correctly providing legitimate number of a representatives of nearness in the Legislative Assembly to the Permanent Residents of J&K belonging to distant and bad areas/terrains (in terms of J&K Representation of the People Act 1947) who otherwise had 14 elected MLCs as against 12 MLCs provided to other areas as per Section -50 of J&K Constitution but had been given lesser MLAs by faulty delimitations done over the years (v) in a way denying the Quality of Health Care & Medical Education for the Permanent Residents of J&K since the existing rules did not allow appointment of specialists doctors from other Indian states in local government medical colleges / hospitals that faced acute shortage of qualified / experienced doctors and at occasions for filling posts/ granting promotions requirements were relaxed at the cost of quality education / health cover (vi) J&K state did not contribute a few medical seats from local government medical colleges to common national pool thereby denying opportunity to the permanent residents of J&K to compete for thousands of seats of MD/MS otherwise available at national level (vii) Section -20 (a) of J&K Constitution said but that was not adhered to (vii) and the like .
Requests / suggestions from the permanent residents of J&K, and even indirect suggestions from the courts for corrections had no effect worth corrections and State Administrations / Politicians were proud of holding to Art-35A only as power tool to demonstrate their might as ” Special” even at cost of the Permanent Residents of J&K. No one even from amongst the Indian Citizens who were named as Permanent Residents of J&K could approach a court even against such like rules/policies/laws/acts of the state since Art 35A provided constitutional cover to the State that could be otherwise accused of knowingly not bothering to take corrective measures even in the matters that concern the PRoJ&K citizens of India what to talk of non permanent resident of J&K Indian citizens.
So even many Permanent Residents of J&K who had been given the cover of Art35A as part of Constitution of India under which they could be given special treatments even by violating the fundamental rights of other Indian citizens where ready to lose the cover of Art35A since the said article was being indirectly used to deny many other goods to them as Indian citizen. Had the leaders like Dr. Farooq Abdulla paid heed to the suggestions being made over the years for making corrections surely the “permanent residents of J&K” would not have appreciated any suggestion for losing the cover of Art35A.
To be continued…..
(The writer is a Sr Journalist & a known analyst of J&K affairs)