In the early years after the partition, the community was unorganised and waiting for their rights based on Sheikh Abdullah’s claim. Article 35A was only added 7 years after their settlement, and at this time, most of them were farmers, tilling the land that they had been given. It was only after the birth of the second and third generation when they started to realise the restrictions placed on them in various spheres of life. It was in 1987 when Bachan Lal Kalgotra, the then-President of the West Pakistan Refugee Action Committee, filed a writ petition in the Supreme Court to contest certain land provisions, and in this judgement, the Supreme Court referred to Article 35A, stating that “the position of the petitioner and those like him is anomalous and it is up to the Legislature of the State of Jammu and Kashmir to take action to amend legislature, such as, the Jammu and Kashmir Representation of the People Act, the Land Alienation Act, the Village Panchayat Act etc. so as to make persons like the petitioner who have migrated from West Pakistan in 1947 and who have settled down in the State of Jammu and Kashmir since then, eligible to be included in the electoral roll, to acquire land, to be elected to the Panchayat etc. etc.” (Bachan Lal Kalgotra vs State of Jammu & Kashmir and Others, 1987) . According to Dinesh Malhotra, a senior correspondent at the Tribune, the petitioners began gathering evidence of their mistreatment by the community, and this was when the awareness of the effects of Article 35A began spreading. By this time, the ‘West Pakistani Refugee Action Committee of 1947’ had already been established, and started to become more proactive in its efforts. Though the Kalgotra case simply ended in a Supreme Court recommendation to the Central Government and State Legislature of Jammu and Kashmir to make provisions to improve the position of these people, it was successful in creating awareness in the community. As mentioned previously, the West Pakistan Refugee Action Committee has also been issuing identity cards and documenting the origin of these people, and has taken upon itself the responsibility of maintaining up-to-date records of the community.

The West Pakistan Refugee Action Committee has also filed a petition in the Supreme Court, made up of multiple petitioners, hoping to once again question the validity of Article 35A and hopefully scrap the provision altogether. The hearing for this is scheduled in April in front of a three-judge bench. The committee also organises various local level protests and dharnas. They have also been staging protests in Delhi, to make their issue heard at a national level. The West Pakistan Refugee Action Committee has also written various letters and pleas to the Prime Minister giving suggestions which may help their situation, and requesting compensation or a special relief package, a sample of which is attached as Appendix F.

There have been three major actions of the Government in this direction – the Wadhwa Committee Report (2007), the All-Party Meeting (May 2007) and Joint Parliamentary Committee Report (2014).

After an All-Party meeting in 2006 convened by then-Chief Minister of Jammu and Kashmir, Ghulam Nabi Azad, it was decided that a committee must be created to investigate the condition of the different refugees and displaced persons of the state, one of which was the West Pakistan Refugees of 1947 (Nargotra, 35A and the West Pakistan Refugees, 2017). After an investigation by the Wadhwa Committee, the report stated that the demands of these refugees were justified, and required consideration on the part of the Government (Wadhwa Commitee, 2007). The section of the report dealing with West Pakistan Refugees is attached as Appendix G for further reference. After this report was presented, another All-Party Meeting was held in May 2007, where, according to Nargotra, “all political parties supported the providing of basic civic facilities and other social- and development-related amenities to these refugees which are possible without amending any existing law or the Constitution of the State,” but they felt amendment was the prerogative of the government and chose not to comment or interfere on legal changes. (Nargotra, A Study of West Pakistan Refugees in the State of Jammu and Kashmir, 2012). Though there was general consensus about the issue in 2007, no action was taken.

In 2014, a Joint Parliamentary Committee was set up by the Rajya Sabha, chaired by Venkaiah Naidu, and later by P. Bhattacharya. This discuss the problems faced by various displaced persons in the state, as well as the actions taken by the Government to assist these people. The Committee was created after the NDA coalition came to power, and questioned various ministers and relevant authorities on the actions being taken to improve the condition of the West Pakistan Refugees. The Joint Parliamentary Committee acknowledged the need to grant the community Permanent Residency and voting rights in the state, as well as provide them jobs in the state government, along with due reservation for the Scheduled Caste members. It also recorded a response from the Home Ministry which stated that concessions will be made to allow the children of the West Pakistan Refugees into professional courses like medicine and engineering.

Thus, we see that the government has not failed to address the issue, and the problem here is not the lack of awareness about the problem. The recommendations of the Joint Parliamentary Committee were even presented in the Rajya Sabha. The issue that seems prevalent is the lack of political will to take action on this matter. Since 2014, there has been no affirmative action on the part of the government in this direction.

 

 

If we examine the provision of Article 35A in relation to the current condition of the West Pakistan Refugees, numerous violations of fundamental rights immediately stand out to us. Firstly, since this article curbs the basic freedom of the people to work, study, buy land and live a life of dignity, it is a violation of Article 21, which states that no person can be deprived of their life and personal liberty. Article 35A also curbs the Right to Equality as enumerated in Articles 14-17, which the researcher will explain individually. Article 14 is the basic right to equality that all people must have in the country, and includes equality of opportunity, of treatment and before law. The West Pakistan Refugees are a community which have none of these benefits, since the law itself limits the equality they receive. Article 15 states discrimination is prohibited on the basis of race, religion, place of birth and so on. Just because their forefathers were born in West Pakistan, these people do not have the equality that they deserve. Even in terms of public employment, they cannot avail of this, since they do not have a Domicile Certificate. This is a direct violation of Article 16. Article 17 discusses the abolition of untouchability, but these people are majorly Scheduled Castes who cannot avail of the benefits of reservation given in the rest of the country.

The West Pakistan Refugees, along with the rest of the residents of Jammu and Kashmir, do not even receive the benefits of Article 21A, due to Article 370, which seeks to provide free and compulsory education for children aged 6 -14. This has severely affected their education rates and left them feeling alienated. Finally, Article 13 states that any law that is not in accordance with the Fundamental Rights enumerated in Part III shall be declared unconstitutional. The Fundamental Rights are justiciable and therefore, Article 35A stands as an unconstitutional, exploitative provision. It also violates Article 368 of the Indian Constitution, which holds Presidential Orders valid only for 6 months, until their approval by the Legislature and conversion to an Act, which was not carried out in the case of Article 35A. Beyond this, some universally accepted rights, such as the right to work, the right to vote and the right to residence, as well as freedom from discrimination and freedom of movement are violated by this article. It is imperative for us, therefore, to find a solution to this problem, to uphold the ideals of equality and democracy in our country.

5.4 - Suggestions and Proposed Solutions

Though the most important suggestion would be to completely remove the provision of Article 35A, by means of a Supreme Court ruling on its unconstitutionality, there are also other issues that plague the community, and after decades of mistreatment, these issues must also be addressed.

First and foremost, the issue of these refugees is a humanitarian one, and must be dealt with in this way. Awareness must be created about their situation so that political pressure can be exerted upon the concerned policy-makers. The Joint Parliamentary Committee report of 2014 suggests that these people be given the status of Permanent Residents, without which they are unable to live a free and equal existence.

For the issue of landholding, the government must allot them other evacuated plots of land, some of which still remain empty in the state. The government must also stop asking them for rent which is a burden on their finances, due to their impoverished socio-economic status. The government must also grant them permission to renovate their property, if it is not willing to do so. Without this, they will continue to be forced to live in dilapidated homes which are a constant danger to their lives. Even if they are not given Permanent Residency, they may be included in the Electoral Roll, as this would help them gain some political representation.

In terms of special relief, if the state government is unwilling to grant them any concessions, this duty falls upon the Centre to ensure that these people are given some compensation for their suffering over the last 71 years. They must also be given loans and financial aid more easily, as it is difficult for them to earn money without initial investment. The Centre can also issue a Special Relief Package as a one-time compensation to them, which will act as a beginning to alleviate their misfortune. The Centre must also ensure that their schemes reach these people, which is not happening today due to the state’s inclusion of Permanent Resident Certificate as a requisite to avail of these. Educational waivers must be granted to the people of this community, allowing their children to enrol in professional courses and have a chance at better employment opportunities. For the purpose of employment, the rule of requirement of Domicile may be relaxed in their case, so that those of them who wish to, may join the Army or other defence forces.

The State Government may extend provision of a Reserved Category Certificate and Below-Poverty-Line Certificate for these people, which will put them on par with the other communities, at least in terms of opportunity. The Joint Parliamentary Committee (2014) even recommended a one-time compensation of 30 lakhs to them. Another viable option is a Centrally-sanctioned Special Relief Department, that could deal with the grievances of these people and help their case in the state.

 

Bachan Lal Kalgotra vs State of Jammu & Kashmir and Others, 1987 AIR 1169, 1987 SCR (2) 369 (Supreme Court of India February 20, 1987).

Nargotra, S. (2012). A Study of West Pakistan Refugees in the State of Jammu and Kashmir. In R. Chowdary, Border and People - an Interface (pp. 79-110). Centre for Dialogue and Reconciliation.

Nargotra, S. (2017, December 26). 35A and the West Pakistan Refugees. (S. Rao, Interviewer)

 

Though there are a number of possible temporary solutions to this problem, the only long-term answer is the scrapping of Article 35A from the Constitution. We have seen that the Article has violated the rights of the West Pakistan Refugees at every level of their existence, and this evidence is undeniable by even the harshest of critics. The question of Article 35A is not simply to remove the oppressive laws placed upon the West Pakistan Refugees, but to remove the oppression that all non-‘Permanent Resident Certificate’ holders living in Jammu and Kashmir face.

A. G. Noorani purports the argument that since other states have the provision for non-interference, which gives them a “special status”, such as Article 371B for Assam or Article 371D for Andhra Pradesh, the state of Jammu and Kashmir is no different. Therefore, it is entitled to the clause of Article 35A and Permanent Resident Certificates, and therefore, nobody has the authority to question the provision (Noorani, 2015). The researcher believes that this argument is flawed, because as under the system of federalism which exists in India, states are given a large amount of autonomy in any case. This cannot mean that any government of that state can deprive Indian citizens of their basic human rights at any cost. The researcher would also like to emphasize that no state, including that of Jammu and Kashmir, has a “special” status. This can be supported by a reply by the Government themselves, stating that it does not have any special status. The report is attached as Appendix H.

It is a sad day for the largest democracy in the world when over 1.5 lakh people are not granted their basic human rights and representations, when their pleas fall on deaf ears for 70 years at a stretch. The researcher would like to conclude by stating that her hypothesis was proven right, and that Article 35A truly curbs the basic human rights of the West Pakistan Refugees. In this kind of situation, where all the other organs of the government have failed to act, we look to the judiciary, which has always been a pillar of Indian democracy, to remove this repressive law so that not only the West Pakistan Refugees may avail the benefit of it, but also other communities who are victims of this, such as the women of the state, the Valmiki community of Jammu and the Gorkhas. These people have been used and subjugated by the government, rather than helped.

 

References

Noorani, A. G. (2015, August 13). Article 35A is beyond challenge. Retrieved from Greater Kashmir: http://www.greaterkashmir.com/news/opinion/article-35a-is-beyond-challenge/194167.html