Map of Jammu & KashmirIn 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

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

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

Map of Jammu & Kashmir post abrogation of Article 370 and 35aOn 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.