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Challenge to Jammu and Kashmir’s law on ‘permanent residents’: meaning and implications

The J&K Study Centre says Article 35A is unconstitutional because it was added by a Presidential order, without the approval of Parliament.

Written by Muzamil Jaleel |
Updated: July 16, 2015 10:01:33 am

An RSS-backed think tank called the Jammu & Kashmir Study Centre has said it will challenge the constitutional validity of Article 35A, which debars non-residents of J&K from buying land or property, getting a government job or voting in Assembly elections. MUZAMIL JALEEL explains this provision of the Constitution, and wide-ranging implications in the event of a successful legal challenge to it

What is Article 35A? When was it introduced in the Constitution?

The provision that empowers the J&K legislature to define “permanent residents” of the state was added to the Constitution through the ‘Constitution (Application to Jammu and Kashmir) Order, 1954’, issued under Article 370. The Presidential order superseded an earlier order issued in 1950, which had provided a framework for the division of the powers between J&K and the Centre under Article 370.

What happened then?

The J&K Constitution, which was adopted on November 17, 1956, defined a Permanent Resident (PR) of the state as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has “lawfully acquired immovable property in the state”. The J&K legislature could alter the definition of PR through a law passed by two-thirds majority.

The PR law replicated a state subject law promulgated by the Dogra king Maharaja Hari Singh in 1927 following a strong campaign by Kashmiri Pandits who were opposed to the hiring of civil servants from Punjab, because it had affected their representation in the Dogra administration. The Kashmiri Pandit agitation of the time did not affect the Muslim majority because the Dogras as a policy kept Muslims largely out of the administration.

On what is the planned challenge based?

The J&K Study Centre says Article 35A is unconstitutional because it was added by a Presidential order, without the approval of Parliament. Soon after sweeping the Jammu region in the Assembly polls last December, RSS leader Arun Kumar, then director of the Centre, had said: “It was Article 35A, not Article 370, that barred citizens from across the country from settling in J&K.” Sangh groups believe that the only way to permanently end the Kashmir dispute is to alter the demography of J&K by settling people from outside the state, with the right to vote and acquire land.

What can be the implications of a successful challenge to the 1954 order?

Should the legal challenge succeed, doors can open for the invalidation of all 41 subsequent Presidential orders, each of which was an amendment to, or modification of, the 1954 order. According to the report of the State Autonomy Committee, the central government, through these Presidential orders, extended 94 out of 97 entries in the Union List to J&K, and made applicable to the state 260 out of 395 articles of the Indian Constitution. It is these orders that have over the years overridden the provisions of the J&K Constitution — they have been used to replace the elected Sadr-e-Riyasat (President of the State) with a Governor chosen by the Centre, change the ‘Prime Minister’ of the state to Chief Minister, and extend the powers of the Supreme Court and Election Commission to J&K. One such Presidential order was, in fact, issued to prevent the state Assembly from making any amendment to the J&K Constitution.

The Presidential orders have actually been extremely handy for New Delhi in J&K. For example, unlike in the case of Punjab, in which Parliament had to amend the Constitution repeatedly to impose President’s rule, the Centre has managed to impose direct rule on J&K through these Presidential orders.

If the mother of all Presidential orders — the order of 1954 — goes, J&K can, in theory, return to the pre-1954 constitutional arrangement, where the Centre’s powers were restricted to Defence, Foreign Affairs and Communications alone.

How have Kashmiri political players reacted?

The issue has brought everyone — separatists as well as all parties in the mainstream — together. National Conference leader Abdul Rahim Rather described the PR law as “the last protection for our state”, and said his party would “do everything to fight any move to alter this law”. The controversy is likely to only sharpen the communal divide in the state.

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