Article 35A allows the Jammu & Kashmir
legislature to define the list of ‗Permanent Residents‘ of the State,
who are eligible to vote, can work for the State Government, can own land, buy
property, can secure public employment and college admissions, etc.
Schedule Castes and Backward Classes
This Article has
denied certain basic rights to many communities living within Jammu
&Kashmir for the past six decades. Predominant amongst these are the Valmikis of Jammu & Kashmir.
Historically there is a marginalized Dalit community found in almost all
regions of India. In 1957, around 200
Valmiki families were brought from Punjab
to Jammu &Kashmir, following a cabinet decision, specifically to be
employed as Safai Karamcharis
(sweepers). These families agreed to work in the State after being promised that the ‗Permanent Resident‘
clause would be relaxed in their favour.
After a lapse of
five decades, families have grown. However, their plight is that they are ‗Permanent Residents‘ of Jammu
&Kashmir only to the extent of being Safai Karamcharis. Their
children have studied up to graduation level and beyond but are not eligible to apply for government
jobs and cannot get admission to government-run professional
institutes. The educated youth from these Valmiki families are only eligible to be appointed as safai
karamcharis. The educated Safai-Karamcharis already working in Jammu
Municipality is now qualified for further promotions but they can only be
employed as sweepers. These Valmikis can vote for Lok Sabha elections, but not for State Assembly or municipality
elections. The colony
that was allotted to them to live in (Valmiki Colony, Gandhi Nagar, and Jammu)
has not been regularized till
date. Is this not the worst kind of racism practiced in the modern world?
Migrants and
Refugees
Similarly, those
who migrated from West Pakistan
to the Indian State of Jammu Kashmir during Partition in 1947 have been living
there since last 68 years. But over six decades later, they are still identified as ‗refugees‘
and forced to live in ‗camps‘.
Even their third generation is tagged as ‗refugees‘ and denied rights and
privileges that should have been immediately granted to those who were forced
to migrate from Pakistan. Compare their situation with those who migrated from
Pakistan to other parts of India such as Delhi,
Mumbai, Surat etc. They were rehabilitated
with a number of welfare measures such as allotment of houses, jobs etc. In fact, their integration into the
mainstream was virtually seamless. Today, they are the rightful citizens of India, enjoying every right and
privilege that the Constitution of India confers on all Indians. After over six
decades of living like bonded labour, these families want to be free of the
‗refugee‘ tag.
Around 5,764 families consisting of 47,215
persons migrated from West Pakistan to different areas of Jammu
Division. No land was allotted to them by the State Government. These refugees
were able to occupy some land, which was later allowed to be retained by them without conferring upon them the title
of land because of their non-Permanent Resident status. This means they can stay on this land, but cannot
sell it or buy any other property. West Pakistan Refugees (WPR) is
mostly from the deprived sections and more than 80% of them belong to the Scheduled Castes. The Jammu&
Kashmir law for them means – they can be tillers,
labourers, tenants but not landowners and land-lords. After six
decades, their population has grown
manifold. By some estimates, it‘s about three lakh now. It‘s obvious
that the land they could retain six decades ago cannot be sufficient now.
Denial of ‗Permanent Resident Status‘ in Jammu Kashmir, WPRs cannot get a job in the State Government.
WPR families can't avail the benefits
of various social welfare schemes launched by the State Government. No
other benefits of any kind have been granted to them. Their children are not entitled
to scholarships and fellowships available to Permanent Resident Certificate
holders.32
Members of West
Pakistan Resident families cannot get admissions in any State-run professional
colleges. They are not even eligible
to cast their vote for State Assembly elections. They have no participation in local village
panchayats and other selfgoverning bodies up to the district level.
This has brought them down to the level of second
class citizens as they have no role in law-making at the State level.
While the authorities at the Central and State levels took a number of steps to
rehabilitate even the nomadic tribes by allotting them lands on permanent
ownership basis, nobody cared for these ‗refugees‘ from West Pakistan.
Gender Biasness
Article 35A is
interpreted differently for men and women, and that is where the issues begin.
For instance, allied legal provision such as Section 6 of the Constitution of
Jammu & Kashmir dissuades women from marrying a man of their choice. By restricting the basic right of a woman
and her children to hold property rights if she marries a man not holding the
Permanent Resident Certificate. Section 6, however, does not apply to men who marry
nonresident citizens. The tacit interpretation of such a provision
would simply be that women are considered chattel and property of the men who ―own‖ them, and hence, if their
geographical location changes, the status of their rights would too.36
The Basic
question here is an inherent gender inequality within the State that is brought
about by the provision of Article 35A. A similar matter has been dealt with by
the Jammu & Kashmir High Court in
2002 in the case, State of Jammu & Kashmir v. Sushila Sawhney and Ors. 37 The High Court stated that the daughter of a Permanent Resident
marrying a person outside the State would not lose the status of Permanent
Resident of Jammu & Kashmir. However, after the Sushila Sawhney
case, neither did the Parliament make
an effort to explicitly change the language of the provision, nor did any
organs of the State Government issue a clarification on the same.
Moreover, the Sushila Sawhney judgment talks about women‘s permanent status in
the State but leaves out the fate of
her children, and the present case seeks to do just that.
Similarly, a
Kashmiri woman, Charu Wali Khanna,
has challenged the Constitutional validity of Article 35A before the Supreme
Court, stating that it violated her
right to equality under Article 14 enshrined in the Constitution. She
stated: ―Article 14 of Constitution gives a fundamental right to equality before law. But Article 35A is
heavily loaded in favour of males because even after marriage to women from
outside (Kashmir) they will not lose the right of being Permanent Residents. A
woman from outside the State shall became a Permanent Resident on marrying a
male Permanent Resident of the State but a daughter who is born (to a) State
subject will loss the right on marrying an outsider.‖ Because Khanna married
out of her caste and settled outside of Jammu & Kashmir, she has been
deemed a non-resident citizen and because of such ―unreasonable classification
between males and females‖ she decided to approach the Supreme Court.38
She wanted to buy
land to build a house but the PDP-BJP government refused her permission citing
this particular section of the Constitution. She pleaded before the Supreme
Court that ―Farooq Abdullah and his
son Omar (National Conference leaders) are married to non-Kashmiris. The father
and son not only do not lose Permanent Resident status, but their wives get a
right to property too. At the same time, Sarah Abdullah, the daughter of Farooq
Abdullah, who is married to Sachin Pilot (Congress leader), loses her Permanent
Resident status and right to property too. This is where the gender
inequality, a clear violation of right to equality lies. Likewise my client,
who married outside the State, loses the citizenship and also property rights.3
Xxx
Fear that it
would lead to further erosion of J&K's autonomy and trigger demographic
change in Muslim majority valley. Political parties say Kashmir resolution lies
in greater autonomy; separatists fan paranoia against possibility of Hindus
'flooding' the valley. However, in the last 70 years, demography of Kashmir
Valley has remained unchanged even as Hindu majority in Jammu and Buddhists in
Ladakh have rights to buy property and settle in the Valley.
