Supporters of Article 35A insists that it is essential to preserve the demography of Jammu & Kashmir. The question arises whether the denial of equal rights to women is the only way to ensure the demography of Jammu and Kashmir remains the same and whether it is a reasonable or acceptable price to pay even if it in some ludicrous way benefits the people of Jammu and Kashmir.

 

The state law minister accepted that “the females all over the globe are subjected to biological, civil, political, social and legal discrimination and subjugation”. Yet he somehow justifies his own contribution to perpetrating the discrimination against women with a very queer argument. According to him, the right to preserve ethnic identity was guaranteed under international law. His argument was that there was no question of discrimination when outside women who married Permanent Resident Certificate holders were given Permanent Resident status. Thus, he believed that loss of Permanent Resident Certificate of women who married outsiders was compensated by the gain of outside women who marry citizens of the state. This goes to show his mindset that in both cases, women have no identity of their own and their status is to be determined by that of their husbands. This is a very outdated and archaic concept. (Puri, 2004)

 

The question that arises here is that if this provision is to preserve the ethnic purity in the state, isn’t this purity affected when men marry ‘outside women’? If this discriminatory provision is based on the fear that outsider, by marrying girls of the state acquire property rights in the name of their wives and gain an unwarranted stake in the functioning of the state, there is greater need for applying deterrents to men who marry outside than women who do so. Strangely enough, PDP president and current CM of Jammu and Kashmir, in an interview with the Kashmir Times on 20th March 2004, argued that there are more reasons now that the disqualification law should be applied to men. She based this statement on the following reasons i) within the last 15 years many young men have died due to militancy related incidents; ii) due to problems in the state so many boys have left the state to pursue higher education and end up marrying their college mates; iii) there has been an inflow of Bengali, Bihari and other women in the state, who marry Kashmiri boys. Thus, Mufti acknowledged the fact that women are deprived of much choice within Jammu and Kashmirand that this ratio will become very disproportionate unless people consider putting restrictions on boys marrying outside the state. However, these statements of hers appeared to be bogus as when the time came to campaign for the party during elections, she uncompromisingly championed the disqualification of PR status of women alone.(Puri, 2004)

 

From the primary and secondary data collected and analysed, it can be concluded that Article 35A does in fact have a negative impact on the rights of the women of Jammu & Kashmir. This confirms the hypothesis of the research.

35A violates the fundamental right of women to equality and non-discrimination based on sex guaranteed under article 14 and article 15 of the Constitution of India respectively. Furthermore, it violates article 16, which ensures equal opportunity to all citizens in matters of public employment. 19(g) guarantees citizens the freedom to practice any profession- however, this right is not available to non-Permanent Resident Certificate holders in Jammu and Kashmir. Overall, article 21, which guarantees the right to live with dignity and Article 21A, which ensures the right to education, is violated. Thus by violating the fundamental rights, article 35A goes against the basic structure of the Constitution of India as declared by the Supreme Court in Keshavnanda Bharti Vs. State of Kerala in 1973. A Woman in Jammu and Kashmir is stripped of her basic Human Right to pick a life partner of her choice. She cannot choose a partner from another state, in case she dares to do so it has to be at the cost of her children and fiancé remaining non-permanent residents of Jammu and Kashmir forever and not having any political, civil or economic rights in the state.

 

In fact, even the former Chief Minister of Jammu and Kashmir, Farooq Abdullah agreed that the provision against women was highly discriminatory. Dr. Farooq Abdullah in a TV interview with Barkha Dutt in December 2013 admitted that he personally was in favour of correcting the law so as to make it non-discriminatory towards women. However, his party colleagues did not agree with this. (Kaul & Sagar, 2017) This statement is ironic because in 2004, when the Women’s Disqualification Bill was presented in the Jammu and Kashmir legislature, it was passed unanimously by his entire party (National Conference) in the Vidhan Sabha. The Vidhan Parishad had equal representation from Jammu and Ladakh which is why this bill failed in the Parishad.

 

In addition to being injurious and discriminatory, 35A is also technically unconstitutional. It has not been added to the constitution through the amendment procedure established by Article 368 of the constitution. It was added via the presidential order and hence was never placed before parliament. This article thus, does not stand the test of constitutionality.

 

It should be noted that twin articles 370 and 35A have created massive chaos in the state of Jammu and Kashmir by almost destroying the state’s entire economy. Thousands of youth are jobless; Lakhs do not earn enough to feed their families because there are no jobs available to at least 50% of the people who need it. The state has no industries and even traditional cottage industries are deteriorating. The state gets no investment from big industrialists or from local traders. The industrial estates set up by the government are defunct. Since majority of the youth have nothing to do, many of them fall in the web of terrorism. In conclusion, Article 35A has not only generated hindrances in the path of good governance but has also created economic stagnation.

 

 

The only solution to the chaos created by Article 35A is the complete abrogation of the said article. Each state within India should aim to pass laws in the interests of the weaker sections of society. For the first time, a law has been seen to take away the rights of the people rather than guarantee them their rights. Truthfully, Jammu and Kashmir does not need a law like 35A. The fear in the minds of people regarding demographic changes that may occur due to influx of outside population in Jammu and Kashmir is irrational.

There are other ways to protect the indigenous population of a state that do not involve an unjust law like 35A that violates fundamental rights. For instance, in Uttarakhand there is a law which prevents anybody from purchasing agricultural land if he himself or his family do not already possess agricultural holdings from before and do not have the domicile. Lands belonging to scheduled Caste owners cannot be purchased by any general category buyers. Tribal states in mainland India have similar laws while North Eastern states have stricter laws with regards to immovable property. If none of these states require a law like 35A the surely Jammu and Kashmir can pass laws to place reasonable restrictions on the purchase of immovable properties under existing provisions of the Indian Constitution. (Kaul & Sagar, 2017)

 

Many eminent figures in Jammu & Kashmir’s political scenario have voiced their opinion against the repeal of Article 35A. Former CM and leader of the opposition, National Conference, Omar Abdullah in a way warned the parliament that any tampering with the article would damage the relationship of Kashmir with India irreversibly. Former CM and current MP Farooq Abdullah threatened to launch a mass agitation that would be more intense than the Amarnath agitation. (The Economic Times, 2017) Current CM Mehbooba Mufti almost threatened the national government and the people of India in saying that there will be such a huge protest if 35A is repealed that not a single person will be available to raise the national flag. (The Indian Express, 2017) These leaders are trying to make Article 35A appear to be sacrosanct. It should be treated as any other constitutional provision open to amendments under Article 368 of the Constitution of India.

 

On a positive note, NGO We the Citizens has filed a PIL in the Supreme Court on the grounds that Article 35A violates the fundamental rights of certain citizens living in Jammu and Kashmir and it was introduced without following proper procedure and hence it shall be repealed. Another petition to repeal 35A has been filed by Charu Wali Khanna, a Kashmiri woman who married outside Jammu and Kashmir. The Supreme Court clubbed a number of petitions together and the date for the hearing was 25th January 2018. The date of the hearing has been pushed to April 2018. One can only wait and see what the Supreme Court verdict regarding the fate of this article will be.

Furthermore, it is important to create awareness regarding Article 35A. Through the course of this dissertation, the general understanding of the researcher was that not much is known about this article. Discourse needs to be generated and more people need to be educated on the implications of this article on the lives of the people in Jammu and Kashmir. Once discussion on this article becomes prominent, the media will take up this issue with more fervor. Public opinion and media pressure is essential for bringing about a change in the current state of affairs described in this research.

 

It is also very important for people to understand that Article 370 does not bestow any special status on Jammu and Kashmir. It was meant to be a temporary article. In fact, instead of being special, this article along with Article 35A has taken away the rights of people in the state. Something must be done to improve the lives of the affected communities in Jammu and Kashmir. Generation after generation of these communities cannot keep losing their rights to the state government.

 

References

Kaul J, Sagar D (2017) “Article 35A: Face the Facts” (ed 1) Jammu and Kashmir Study Center, New Delhi, Pragati Creations.

Chowdhary, R (2010) “Identity Politics and Regional Polarisation in J&K” Economic & Political Weekly Vol. 45, (pp. 15-20), Retrived from: http://www.jstor.org/stable/27806994

Puri, B (2004) “Permanent Resident Bill: Questionable Legal, Moral and Political Basis.” Economic & Political Weekly Vol. 39, (pp. 1456-1457), Retrived from: http://www.jstor.org/stable/4414857

Irfan, H (August 8, 2017) “Abrogation of article 35 (A) can trigger a bigger revolt than Amarnath land row across J&K: Farooq Abdullah” The Economic Times, retrieved from: https://economictimes.indiatimes.com/news/politics-and-nation/farooq-abdullah-warns-of-uprising-if-article-35a-is-axed/articleshow/59955635.cms

Express Web Desk (August 11, 2017) “Mehbooba Mufti says PM Modi gave her assurance on respecting Article 35A” The Indian Express, Retrieved from:  http://indianexpress.com/article/india/mehbooba-mufti-meets-narendra-modi-jammu-kashmir-special-status-article-35a-farooq-abdullah-4791992/

 

The End