Neither Centre Nor State Has Yet Filed Counter To Petitions Challenging Article 35A

The Centre and Jammu&Kashmir governments are yet to counter a clutch of petitions challenging a constitutional provision that authorises the state to decide who are the permanent residents, the state’s top legal officer told Outlook.

The Supreme Court, which is hearing the petitions against Article 35A, is slated to take up the case on August 6.

“It appears neither the central government nor the state government has filed the counter-affidavit in the case so far,” advocate general D.C. Raina said.

Jehangir Ganai, the advocate general during the previous PDP-BJP government, however, said a short counter to the petitions has been filed in the top court though he had prepared a 150-page-long reply to the petitions. He said it could not be filed before the Supreme Court as he had to demit office after the fall of the PDP-BJP government.

The issue of “permanent resident” is a bone of contention in several states including Assam where it has been thrust into the spotlight once again over the National Register of Citizens (NRC), an official list which aims to identify undocumented migrants from Bangladesh.

Article 35A was enacted in 1954 to assure the people of the state that the Centre had no intention to harm the demography and Muslim-majority character of J&K.

Right-wing groups led by the Rashtriya Swayamsevak Sangh have been demanding scrapping of this provision along with Article 370 which gives special status to Jammu and Kashmir.

The state’s Constitution adopted on November 17, 1956, defines permanent resident of Jammu and Kashmir 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 law of state subject was promulgated in 1927 by Dogra king Maharaja Hari Singh, under whose rule the state acceded to India. It has remained a sour point in the state’s history with many arguing that the Hindu king went against the wishes of the Muslim-majority Kashmir Valley.

The state subject law came into force following a strong campaign by Kashmiri Pandits who opposed the Maharaja’s alleged “over hiring” of civil servants from Punjab as it squeezed their employment chances. The law provides special privileges to the state subjects in terms of acquiring land and getting employment.

In 2014, a non-governmental organisation called ‘We the Citizens’ -- widely believed to be affiliated with the RSS – filed a petition arguing that Article 35A was unconstitutional because it was added by a presidential order without the approval of Parliament.

The next year, an organisation representing refugees from west Pakistan filed a petition against the article on the grounds that it creates a “privileged class” of permanent residents who are entitled to various rights. These refugees are not entitled to vote in assembly elections, unlike refugees from Pakistan-occupied Kashmir, who have full rights as state subjects.

Two women, Dr. Charu Wali Khanna and Seema Razdan, are the latest petitioners who allege that the Article promotes “gender bias and discrimination”. Khanna says she has “anecdotal proof” that she is a state subject as her ancestors left Kashmir during the Afghan rule in 1752-1819.

The National Conference argues that if the law goes, with it all other presidential orders passed since the 1950s will also become redundant and reopen the debate around the issue of accession.

Other political parties, separatists and even the business community have cautioned the Centre against tinkering with the law.

“No court, whether in India or in Pakistan, has any jurisdiction to take decisions that can in any way affect the disputed status of Jammu and Kashmir as its original citizens are yet to exercise the right to determine their final dispensation as promised by UN and backed by India and Pakistan,” moderate separatist leader Mirwaiz Umar Farooq said.

“Any attempt to change the demographic character of J&K and its disputed nature is intolerable,” Mirwaiz said and added that they will go for a mass agitation if the Article is diluted.