Article 35A was against the “Very Spirit of Oneness of India”, as it creates “a class within class of Indian Citizens”. The introduction of this Article 35A was due to the peculiar position of Article 370 in the Constitution of India. Introducing Article 370 was discrimination. Dual attitude of the Government of India is reflected in the then Government offered the special position to the State of Jammu & Kashmir within the framework of that Constitution. The application of other provisions of the Constitution of India except Articles 1 & 370 was on tentative basis subject to the eventual approval of the State. Then special conditions of Kashmir were responsible for the same.
As such under this peculiar set of position and facts, Jammu & Kashmir held a peculiar position under the Constitution of India, which consequently resulted in bringing the Article 370.
The time when the Constituent Assembly was dealing with drafting & shaping our Constitution, the other Indian States accepted the integration with India and also accepted Constitution framed for the States in Part-I of the new Constitution and those provisions were adopted so as to suit conditions of Indian States and Unions of States. The Indian States & Unions of States accepted the Center; this is Republican Federal Center to have a power to make Laws applying in every such States or Unions to all Union Concurrent Subjects. The uniformity of relationships was established between those States & Unions and the Center. At this time, Kashmir’s conditions were treated as special and also special treatment was offered to be dealt with those conditions. Now, Jammu & Kashmir forms a part of the “Territory of India” as defined in Article 1 of the Constitution being 15th State included in the First Schedule of the Constitution, as its stands amended. Initially, in the original drafted Constitution Jammu & Kashmir was treated as “Part-B” State. Jammu & Kashmir came to be included in the List of “States” of the Union of India when THE STATES REORGANIZATION ACT, 1956, abolished the category Part-B States. Even though the Category of Part-B States was abolished, the special position under Article 370 was maintained. Due to this the provisions of the Indian Constitution relating to the States First Schedule were not made applicable to the Jammu & Kashmir even though it is one of the States in that Schedule. Under the British Rule, Jammu & Kashmir was an Indian State ruled by Maharaja. On 26th October 1947 when the State was attacked by Azad Kashmir Forces with the support of Pakistan, Harisingh, the Maharaja sought the help of India on executing an Instrument of Accession. The other Indian States also executed similar Instruments. The said Accession allows Dominion of India to acquire jurisdiction over the States in the subjects of Defence, External Affairs & Communication. As such under this peculiar set of position and facts, Jammu & Kashmir held a peculiar position under the Constitution of India, which consequently resulted in bringing the Article 370.
As such after bringing Article 370, the State was given Special Position. It is also to be seen that the said Article 370 was in Part-XXI, which states about TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS. The Article 370 itself have a title that, 370……Temporary provisions with respect to the State of Jammu & Kashmir. The intention behind the Constituent Assembly was clear that this Article 370 would be temporary in nature. The question remains that, as it was a temporary provision, then why wasn’t it annulled at the 1957 First Jammu & Kashmir Legislative Assembly Elections. In the years since independence, this Article was to be removed, but due to bad administration this Article was not touched.
In the year 1954, just by a Presidential Order Article 35A was inserted in the Constitution. This Article 35A enabled the Jammu & Kashmir Assembly to define permanent residence and allows PRC i.e. Permanent Resident Certificate to be given to people in Jammu & Kashmir. This means it treats Non-Permanent Resident of Jammu & Kashmir as “Second Class Citizens”. This Article discriminates with the Citizens of India, as the people of India are denied with the Permanent Resident Certificate of Jammu & Kashmir while many intruders from Pakistan were granted citizenship. The PRC holders are entitled to various rights and privileges, which are denied to Non-PRC persons and this provision also gives legal sanction to discriminate even among the PRC holders. Article 35A is that part of the Constitution of India, which was added without getting it discussed and approved by the Parliament of India. It is against the spirit of the Constitution of India. This provision discriminates on the basis of Caste, Class, Gender and Place of Origin in clear contravention to the fundamental rights enshrined in the Constitution of our country. On the other hand, in recent times, Rohingya Muslims from Myanmar have been allowed to settle in Kashmir. It has been proved, over the period of time, that Article 35A have discriminated among the citizens of India. When we got Independence, it was necessary to transform a called British Colony into a country. It was our transformation from subjects of an empire to citizens and stakeholders of an Independent Nation and more a Democratic Republic. The inclusion of Article 35A was against the sole spirit behind the struggle of independence. Article 35A not only violated Constitutional procedure established by Law, but also fundamental rights guaranteed under Articles 14, 15, 16, 19 & 21 of the Constitution of India. Article 35A is a big fraud played not only with the Constitution of India, but with the Parliament of India too.
Oppression of Dalits, Other Backward Class (OBCs) and Women in the Jammu & Kashmir came to an end with decision of abrogation of Article 370. From now on talented & deserving Valmiki youths would not be barred from joining any Professional Courses like MBBS, Engineering, B.Tech., M.Tech. etc.
The Jammu & Kashmir Government through Article 35A denied permanent certificate to mostly to the people, who are Backward or belongs to Dalit Hindu Community. In the year 1957 Valmikis (Dalits) were brought to the State. From that time the generations of Valmikis were compelled to become Sweeper. Though Valmikis and their generations are residing in the State since 1957, they are not given Permanent Resident Certificate and as such they were restricted to be eligible only for the post of Sweeper. The youth of this community in Jammu & Kashmir might have been qualified to become Teachers, Lawyers, Doctors & Engineers etc., but the Legislation restricted them to be eligible for the post of Sweeper only. Recently, one Valmiki youth named Eklavya being victim of Articles 370 & 35A challenged the constitutional validity of these discriminatory laws in the highest Court of Law of the country to get community liberated from worst human condition. In his words, he states that, “we are being deprived all constitutional & fundamental rights because of this Article, our third generation is living in virtual slavery because we have no other option but to do the job of Sweeper in Government Sector”. Like Eklavya, one Radhika Gill, who is a top Athletes of Jammu & Kashmir State and who have secured a merit in athletics, but being the sufferer of Article 35A was restricted on question of employment as she is eligible under Article 35A for the job of Sweeper only. This oppression of Dalits, Other Backward Class (OBCs) and Women in the Jammu & Kashmir came to an end with decision of abrogation of Article 370. From now on talented & deserving Valmiki youths would not be barred from joining any Professional Courses like MBBS, Engineering, B.Tech., M.Tech. etc.
It was a matter of shame that the weakest strata of the Society, the Valmikis were subjected to worst form of human rights violation and surprisingly, the self-declared human right protectors kept mum over the issues of Valmikis and Dalits of Jammu & Kashmir. Now the basic human rights, which are included in the Constitution of India as fundamental rights, will be acquired by the Valmikis & Dalits of the State. The practices followed by the State of Jammu & Kashmir to allow Fourth Generation Settlers of Valmikis to be eligible only for the job of Scavenger was inhuman and now on will be deprecated. In true sense the independence will be offered to the said class of society. With the abrogation of Article 370 the Laws like Prevention of Atrocities Act would get applied in the region and oppressed classes will have voice against the violation of their rights enshrined in the Constitution of India. The classification created by Article 35A suffers from violation of Article 14 of the Constitution of India. This classification was itself against the principles of equality before law and against the basic structure of the Constitution of India. It is to be noted here that, while drafting the fundamental rights the President of the Drafting Committee Dr. B.R. Ambedkar have reached to every “individual” of the country. Dr. B.R. Ambedkar have taken due care so as to restrain the violation of human rights of every individual of the country. Dr. B.R. Ambedkar never expected the classification amongst the citizens of India and inserting Article 35A was exactly against the spirit of the Constitution.
By abrogation of Article 370 and consequently, the Article 35A will bring the equality enshrined in the Constitution of India to the citizens of the State. The treating of own people as Second grade citizens on the grounds of Non-PRC holders will not be there, as an impact of abrogation of Article 370. The discrimination, which was faced for decades together by Non-PRC holders that they were unable to buy immovable property in Jammu & Kashmir, non-eligibility for employment in the State Government, non-eligibility to contest or vote in Local Body of Assembly Elections, non-availability of Scholorships, will now be removed and equal status as expected and enshrined in the fundamental rights will be acquired by the said class of citizens.
The provisions of Article 35A also violated the principles of gender equality. Local Laws of the State of Jammu & Kashmir, which derives its power from Article 35A, discriminates against Women residents of the State from those women who marry a person from another State. The children from such unions were denied Permanent Resident Certificate and the benefits consequent thereupon such as rights to acquire immovable property and a Government job. This gender discrimination is not allowed in any other part of the country. Now, abrogation of Article 370 will preclude the State from making any such kind of discrimination. In today’s era, the space for regressive laws is not finding place in the minds of the Society. The abrogation of laws like Articles 370 & 35A might get opposed by vested interest. It has taken years to rid the Muslim daughters of Jammu & Kashmir of the evil of “Triple Talaq”. With abrogation of Article 370 the Muslim daughters of Jammu & Kashmir and of course of India now could not be driven to the hardships of “Triple Talaq”.
It is seen that, no Industrialist invests in the State, as they could not own the land for factory or other establishments. It is a matter of fact that there are very less Industries in the State, which is directly linked and related to the employment. It means that because of this provision the people have to migrate in other States in search of jobs. With abrogation of Article 370 the ways of development are made open to the nation a wide. It is a matter of fact that for development of any society, goals of economic standards needs to be achieved. Without economic development no society may progress. In the State of Jammu & Kashmir, the Laws which are directly concerned with the employment, education and other development schemes, enacted by the Parliament of India were restricted by the State Assembly. The youth of Kashmir could not taste the fruits of globalization, which took place after 1992. Behind the curtains of Articles 370 & 35A the common youth of the Jammu & Kashmir was denied opportunities of employment and of course of development. Some of the Kashmiri youth are being lured in Jihad by giving choice between “hell or heaven”. It is an ISI sponsored religious war in Kashmir. It is not a fight for political freedom or choice between India & Pakistan, but between Heaven & Hell. The youths of Jammu & Kashmir were purposely denied the opportunities to be part of globalization, which would have ultimately resulted in the development of common people of Jammu & Kashmir. The rise of few families in politics, who for their political gain, want to keep Kashmiris away from the development which economic reforms of 1990’s and globalization have bought to rest of India. The steps taken of abrogation of Article 370 will help all Kashmiris to be stronger socially, economically and in real sense will bring Kashmiris & their highly cultured grand civilized Kashmiriat on the global platform and make them free from decades of external & internal exploitation. The time have proven that Article 35A have adversely affected the economic development of the State. Industrial Houses avoided to setting up Industries in the State. This hurdle in the economic development of the State will now be removed. Henceforth the Central Government aid for improving the infrastructure will reach to the grassroots of the State. Now, however, with recent decision of Ladakh, Jammu & Kashmir becoming Union Territories the Center can push for improving the infrastructure, which in turn will lead to economic development and improve the life of ordinary people residing in Ladakh and Jammu & Kashmir.
The space for regressive laws is not finding place in the minds of the Society. The abrogation of laws like Articles 370 & 35A might get opposed by vested interests. It has taken years to rid the Muslim daughters of Jammu & Kashmir of the evil of “Triple Talaq”. With abrogation of Article 370 the Muslim daughters of Jammu & Kashmir and of course of India now could not be driven to the hardships of “Triple Talaq”.
When I visited Kashmir in the year 2016, the Driver of the Cab named Farhan had an interesting chat with me. In his words, “Sir Kashmir mein apne aana chahiye, aap dekhoge hamari kashmiriat toh bar-bar aaoge”. When having a kind of friendly talk with him I dared to enquire him about Stone Pelting incidents, he replied “Sir main nahi jaata hoon”. After few minutes of silence he said that “hum development chahate hain Sir, meri education 10th tak huee hain, mujhe aage padhna tha lekin ghar mein kamana bhi toh padta hain, isliye school chhod di. Naukari ke bahut kam mauke hamare paas hain. Hum bhi chahate hain ki pura India ghoomein, Bombay dekhen.” This discussion with Farhan brought out a fact that Kashmiri youth is craving for education, development and opportunities extended to the youths of rest of India. A common young Cab Driver is not a stone pelter, he wants to visit other places in India. He didn’t say that he wants to visit Pakistan or Karachi. He said, he wants to see Bombay. The abrogation of Article 370 and consequently Article 35A will definitely open the ways of education, development and opportunities to the youth of Kashmir and it will definitely fulfill the dreams of many Farhan in Kashmir.
With this move the Kashmir got true independence and when the Kashmiri people will taste the fruits of Constitution of India, they will definitely prosper. For decades together when the application of Articles 370 & 35A failed to prosper the conditions of Kashmir now let the other part of the Constitution be enjoyed by the Kashmiris. Now, local residents and common people will welcome this move of abrogation of Article 370. Now for few, but for many Kashmiriat should not just live it should grow and thrive and as Indians we are proud that with this step we can now give our Kashmiri sisters & brothers real social, economic and political justice and see them thrive as the rest of India has in the 21st Century.