In 1947, when the British rule ended on Indian subcontinent, sovereignty of some 600 princely states was restored by the British. These states had three options; to remain an independent country, join dominion of India or join dominion of Pakistan. The joining with either of the two countries was to be through Instrument of Accession, which was to be defined by individual negotiations with each princely state.
Raja Hari Singh the erstwhile ruler of Jammu & Kashmir at that time decided to remain independent and signed a standstill agreement with India and Pakistan. But soon after the partition Pakistan invaded Kashmir. Hari Singh sought help from India, which in turn sought the accession of Kashmir to India. Hari Singh signed the Instrument of Accession on October 26, 1947.
Article 370 was the basis of Jammu and Kashmir’s accession to the Indian union at a time when erstwhile princely states had the choice to join either India or Pakistan after their independence from the British rule in 1947. The article, which came into effect in 1949, exempts Jammu and Kashmir State from the Indian constitution. It allowed for a separate constitution of its own and a separate flag. It allowed the Jammu and Kashmir region jurisdiction to make its own laws in all matters except finance, defence, foreign affairs and communications.
Article 35A, which stems through Article 370, was introduced through a presidential order in 1954 to continue the old provisions of the territory regulations under Article 370 of the Indian constitution. The article permits the local legislature in Indian-administered Kashmir to define permanent residents of the region.
Article 35A forbade outsiders from permanently settling, buying land, holding local government jobs or winning education scholarships in the region. The article, referred to as the Permanent Residents Law, also barred female residents of Jammu and Kashmir from property rights in the event that they marry a person from outside the state. The provision also extended to such women’s children.
While Article 35A has remained unchanged, some aspects of Article 370 have been diluted over the decades.
Abrogation of Article 370 and Article 35A
On 5 August 2019, the President of India issued a Presidential Order, whereby all the provisions of the Indian Constitution are to apply to the State without any special provisions. This would imply that the State’s separate Constitution stands abrogated, including the privileges allowed by the Article 35A.
Also, along with the abrogation of two articles, the state of Jammu & Kashmir was bifurcated into two Union territories – Jammu and Kashmir consisting of region of Kashmir and Jammu and Ladakh consisting of Ladakh region. The Union Territory of Jammu & Kashmir will have a legislative assembly and an administrative head in form of a Lt. Governor, akin to the administrative structure of New Delhi.
Why Article 35A was retrograde and deserved to be repealed?
Article 35A violates the very concept of equality enshrined in the Constitution of India. Its treatment of non-permanent residents of J&K is akin to treating its own people as second rate citizens. They cannot buy immovable property in J&K, are not eligible for employment by the state government, cannot contest or vote in local body or Assembly elections, cannot avail of scholarships and other grants offered by the state government to its permanent residents and, above all, cannot seek redress in any court, local or national. Most importantly, it deters the corporate sector from investing in the state as sans the provisions to buy immovable property, such investments make little business sense. The state, thus, remains dependent on the Centre for financial assistance, its economy being dependent for the most part on government jobs and doles from the Centre to enable the state to meet its obligations.
The provisions of Article 35A also violate the principles of gender equality since it discriminates against women residents of the state who marry a person from another state. The children from such unions are not entitled to the Permanent Resident Certificate (PRC) or the benefits consequent thereupon, such as the right to acquire immovable property and a government job. The same, however, does not apply to the offspring of a male who marries a woman from another state. It is also a travesty of justice that the Balmikis and Gorkhas who have been staying in the state for generations as also the West Pakistan refugees have been denied the permanent resident status with all its attendant benefits.
Article 35A was, thus, the one defining Article which acted as a hindrance to the holistic development of J&K, affecting every sector. It had created a constitutionally-approved apartheid, giving special political, administrative and legal powers to the ruling elite of J&K, and, at the same time, being discriminatory against women and the non-Kashmiri population in J&K and their supporters in the rest of India. Its repeal will go a long way righting a historical wrong and would be an important step in bringing peace to the region.
After the abrogation of Article 35a, all citizens of India will have equal rights in the UT of Jammu and Kashmir like other states of the country. It will attract investment from other parts of country, giving boost to the economy and resulting in development and progress of the region which had been retarded for last seven decades. Politically, also, it reaffirms and strengthens India’s right over the region as an integral part of India. It is a progressive step for future of India and the region of Jammu and Kashmir.