The Kashmir Conundrum is like Abhimanyu's Chakravyuh

Who is a Permanent Resident of J&K

‘In  accordance with the agreement between the representatives of India  and Pakistan,  that the State Legislature would have the power to make special  provisions for the ‘permanent residents’ it was deemed necessary  that some provisions be made in the Constitution to cover that case.  Accordingly, Article 35-A was inserted by section 2 (4) (j) of the  Order, 1954’. 1 pg 210

Article  35 A was issued under Constitution, (Application to J&K) Order of  May 1954, even much before the Constitution of J&K came into  existence (1956). It must be noted that Article 35 A was added in the  Constitution of India without any amendment but through an executive  order implying that it was not subject to the scrutiny of Parliament.  It appears to be part of our Constitution and comes at the end under  Appendix as ‘As Constitutional (Application to J&K) Order,  1954’. Source

It  is under the provisions of Article 35A that J&K could incorporate  provisions that discriminate between people of other Indian States  and its own.

It  reads, ‘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 J&K 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 J&K 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 provisions of this  part’.

Thus persons who are not  Permanent Residents cannot purchase immovable property, are denied  employment with the State Government, right to scholarships  and such other forms of aid as the State Government may provide,  are disqualified from being a member of  a village panchayat and cannot vote in the State Legislature Assembly  elections.

Armed with the provisions of  Article 35A, the above provisions were sanctified in the J&K  State Constitution in November 1956, with five sections therein  dealing with the entity called ‘Permanent Residents’. Section 6  of the State’s Constitution reads -
1. Every person who is or deemed to be a citizen of India under the provisions of the Indian      Constitution shall be a permanent resident of the State, if on the 14/5/1954:
   a.  he was a State Subject of Class I or the Class II; or
   b.  having lawfully acquired immovable property in the State, he had been ordinarily resident in the State for not less than ten years prior to the date.

2. Any person, who, before the  14/5/1954, was a State Subject of Class I or II and who having  migrated after the 1/3/1947, to the territory now included in  Pakistan returns to the State under a permit for resettlement in the  State or for permanent return issued by or under the authority of any  law made by the State Legislature shall on return be a permanent  resident of the State. ‘This provisio exempts permanent  residents of the State from the formalities of Article 6 of the  Constitution of India’. 1pg 217

‘The definition of ‘State  Subject’ of Class I, II, III was set out in the State Maharaja’s  Notification of 20/4/1927 read  with the Notification of 27/6/1932. It was based on the criteria of  year of birth in the State, on the period of permanent resident in  the State and on the acquisition of the immovable property in the  State’. These definitions came into being because during the  rule of Maharaja Pratap Singh (1885-1925) when there was a huge  outcry due to appointment of large number of western educated men  from neighboring states in Kashmir. The agitation was so strong that  the Maharaja was forced to issue an order that ‘State Subjects’  would be preferred to outsiders in cases of Government employment  hence the definition of State Subject in 1927. 1pges  28,206,506

In the monarchial system of governance prevalent in  the twenties, the Maharaja of J&K may have justifiably  disregarded today’s norms of democratic equality in order to offer  special treatment to certain subjects in order to protect them from  being economically exploited by their well-to-do neighbours. Are  these laws defensible on the ground of equality in a sovereign  democratic republic like India or on the ground of preventing some  imaginary economic exploitation in a State i.e. an integral part of  India? It is also not the case that the poverty levels in J&K are  higher than other parts of India, they are actually much lower.

The  definition of Permanent Resident violates the Preamble of the J&K  Constitution which reads ‘EQUALITY  of status and of opportunity, and to promote among us all’.

With the blessings of Article  35A, the J&K State Legislature enacted laws that confer benefits  on Permanent Residents. The implications of Section 6 are –

One,  over 2.5 lakhs refugees from West Pakistan (mostly Hindus and  Sikhs belonging to Schedules Castes) who  crossed over to J&K after 1944 but before 1954 were denied  Permanent Resident Certificates.

Note that Government of India has permitted the  setting up of Rohingya Muslim camps in Jammu city. Sooner than  later they will become Indian citizens! Also ‘the Sheikh Mohammad  Abdullah-led Government in the State granted citizenship rights to  numerous Uyghur Muslim families in 1952 and, settled them in the  Eidgah area of Srinagar with full citizenship rights. The Uyghur  Muslims migrated from Xinjiang province of China to escape Communist  Beijing’s wrath.’ Why double standards?

Two, these refugees can vote in  Parliament but not in Assembly and Local body elections.

Three, these refugees are  mostly Hindus and reside in Jammu region. If they are allowed to vote  the number of voters in the region would increase and support claims  for an increase in number of Assembly seats. This would eventually  weaken control Kashmir Valley has over the State legislature.

Four, these refugees can't apply for  jobs in the State; their children can't get higher education in the  State, disqualified from being a member of a Village Panchayat.

Five, clause two is open to  severe abuse. Does the State have a record of state subjects as  described in 1947 and how does one prove that a resident of J&K  has migrated to Pakistan after 1/3/1947.

Six, it is the State Government  (whose relations with the Centre have been mostly volatile) which  shall decide if the person is entitled to return under a scheme of  resettlement. Such a person automatically becomes a citizen of J&K  and India. ‘It will be observed that in this respect the State  Legislature acts as a delegate of the Union Parliament’. 1pg  218

Seven, what are the legal and  administrative safeguards to ensure that Pakistanis do not use this  law to settle in India as ISI Agents or to effect demographic changes  in the Valley or predominantly Hindu Jammu not to forget the rest of  India?

Eight, since one of the  parameters for deciding the number of seats in the State Assembly is  population in respective regions; it opens a window of opportunity to  the Valley’s Muslims to increase the population (see actual  census/voter numbers later) so as to retain more seats for Valley  (46) as compared to Jammu (37).

The provisions of article 35A have serious national  security implications. The Government of India has abdicated  responsibility on a matter over which it should have primary control.

Some have  suggested that one way to promote J&K’s integration with India  is to repeal Article 35A.

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