Legal challenge to constitutional provision sparks fears in Kashmir

Protests were held last week in defence of Article 35 (A), which prevents outsiders from owning land and holding jobs

August 13, 2018 by Umer Beigh

Tensions are on the rise in the State of Jammu and Kashmir in India as the country’s Supreme Court considers petitions challenging the validity of Article 35 (A) of the country’ constitution. The provision stipulates that only permanent residents can own immobile property and be employed in government jobs in the State. A three-judge bench, led by Chief Justice Dipak Mishra, has adjourned the hearing on the petitions till August 27. Meanwhile, protests are being held across the State and intelligence agencies have cautioned State authorities that situation may worsen further if this law is abrogated.

Rallies in defence of the Article were taken out in Poonch, Rajouri, Doda, Bhaderwah, Kishtwar, Kargil and across Kashmir valley with the Joint Resistance Leadership in Kashmir, consisting of Syed Ali Geelani, Mirwaiz Umar Farooq and Muhammad Yasin Malik  claiming: “The people of Jammu and Kashmir have raised their voice against any move or act that is intended to wane, weaken, abrogate or tamper with the national identity and distinctiveness of Jammu Kashmir and have in unequivocal terms and with one voice announced their verdict that no resident of Jammu and Kashmir will accept any such move or judgement.”

Pro-freedom groups in Kashmir called for a two-day strike from August 5 and warned of “mass agitation” if the law was changed. Sections of the political and social spectrum that usually support India, including lawyers, trade bodies, civil society members and residents’ groups also supported the strike and warned of widespread protests if the law was struck down.

Article 35 (A) is akin to controversial Article 370, the provision which confers a large degree of autonomy to Jammu and Kashmir, except in matters of defence, foreign affairs and communication.

Article 35 (A), which came into effect in 1954, bars non-natives (who are not State subjects) and those who have not lived in the State for more than ten years from lawfully acquiring any immobile property in the state. There was a notion attached with this law for a long time that it denied property rights to Kashmiri women who marry outside the state:

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: (1)defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; (2)or conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects— employment under the State Government; (3) acquisition of immovable property in the State; settlement in the State; (4)or 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.” (Article 35 A)

For the right wing in India, provisions such as these with regard to Kashmir have always been a sore point. The right wing believes that the best way to resolve the various issues in Kashmir is to drastically change the demography of the State, which means allowing non-natives (citizens from other States) to buy land and participate in the voting process.

The right wing has a long history of attempts to challenge provisions that have sought to protect the unique character of Kashmir. A few years after independence, Shyama Prasad Mookerjee, the founder of the Bharatiya Jan Sangh, the precursor of the BJP, who was a fierce critic of Article 370, led a movement against the permit system that was prevalent for outsiders. His subsequent death in a prison after his arrest was used by the right wing to run many a campaign against the constitutional provisions, which continues to this day.  

The Indian government itself has, over the years, watered down many of the provisions that provided autonomy to the State. An example is a change in the terminology of the head of the government of the State from Prime Minister to Chief Minister. Similarly, not much importance was given to the flag of the State or its constitutions.

The Roots of State Subject

The origins of Article 35(A) lie in the determination of the former ruler of Kashmir, Hari Singh, to protect the Kashmiri Hindu elite from being sidelined by officers from outside, mainly from Punjab. To this end, the state subject law was passed in 1927 that prevented outsiders from settling and owning land in Jammu and Kashmir.

This law became part and parcel of the State’s identity was a key aspect of the autonomy that was granted to it as it became a part of India. In 1954, a presidential order granted the state legislature the power to define conditions of permanent residentship for which Article 35 (A) acted as a template so as to safeguard some privileges the residents of the State enjoyed.  

However, over the years, with resistance to Indian military and civil presence increasing, many feel that the law offers them some protection from the possibility of a demographic change (such as when the Jammu massacre changed the dynamics of entire province in 1947). Many who are hopeful of a referendum in the State as part of settling the dispute also see the constitutional provision as key to the process.

The challenge to Article 35 (A) has led to many apprehensions in the valley with many comparing the situation to that of the Israeli settlement policy in Palestine. Many who are protesting are worried that the abrogation of the law will prove a stepping stone to further “demographic terrorism,” as termed by the head of the law department at the Central University of Kashmir, Sheikh Showkat.   

Thus, most political actors in the State are on the same page as far as defending the article is concerned. If the legal challenge does end up in the abrogation of the law, there is the possibility of another major agitation as many have already declared it as a matter of “life and death”.  

 

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