April 23, 2019

Art 35-A: Simple facts to prove the perfidy played on Kashmir and India

Article 35-A is suddenly in headlines.

It is a welcome move, but must be baffling many who had never heard the word Art 35-A being mentioned in relation to Kashmir in last 70 odd years.It is not surprising ,given that in 1986 whereabouts, a plea on quashing 35-A was rejected by a SC judge claiming that 35-A was no where to be found in constitution.

In this article a brief background to Kashmir is needed to fully understand the perfidy of art 35-A

Kashmir was a princely state in the erstwhile British India. Following the partition of India in 1947 acc to India Independence act 1947, the control of Princely states was given back to the rulers who had liberty to join either India or pak as per some guidelines specified. Kashmir was the largest Princely State with borders adjacent to both Pakistan and India and Transport of Logistics to Kashmir was via Pakistan. Maharaja Hari Singh was the Ruler of Kashmir and signed a standstill agreement with both Pakistan and India to have status quo till a decision was reached. But in Sept 1947 Pakistan army attacked Kashmir in guise of tribals and Pakistan also stopped supplies to Kashmir. As Pakistan had violated the standstill agreement Maharaja Hari Singh signed the letter of Accession and Legally Kashmir became a part of India on 26 oct 1947.

Here it should be noted that the letter of accession was the same that was signed by 565 or so  other princely states, and accession was under the Indian Independence act 1947 and not under any Special conditions as is the canard spread for last 70 Years .

Art 370 and the canards related to it.

On Oct 17, 1949, Gopalaswamy Iyenger introduced Article 306-A in the Constituent assembly of India, against the wishes of Dr Ambedkar. This article was incorporated in the Constitution as Art 370 in the 21 chapter as a ‘temporary, special and transitional’ clause, prime objective being to facilitate implementation of Indian constitution in Kashmir as there was a war ongoing with Pakistan and a UN resolution was to be implemented. This is the second Canard that is spread about Kashmir that it acceded under Art 370 and 370 is permanent.

A Delhi accord is also quoted-but this accord was basically a treaty between two leaders -Sheikh Abdullah and Nehru-neither were people and elected representatives of JK included, nor was the parliament involved nor did it mandate Nehru to enter into accord, except to pass it after Nehru had informed the Parliament.

Now we come to the real Devil Art 35 -A

In May 1952, Nehru sent an amendment in form of a presidential ordinance to the president to allow JK to formulate its own constitution. The amendment was called 35-A. The ordinance was never bought to the Parliament for Ratification. It was signed by the president and inserted secretly into the constitution.

The most baffling part is that art 35A was not placed between art 34 and 36 –but in an appendix of the constitution so for many decades it remained a secret, illegal amendment .

To put it simply-Art 35-A was in contravention to article 368, which prescribes procedure of an constitutional Amendment that mandates Parliament, ratifies any addition/deletion of clauses in constitution.

The Devil of Art 35-A: few glaring examples

The constitution of JK is written based on powers of 35-A. It gives right to the JK state assembly to pass any central law after accepting it- so union laws are not automatically implemented in JK

Gender Injustice

The women residents of Jammu Kashmir lose all property rights and other citizenship rights in JK if they marry men who are not Permanent citizens of JK -so sister of Omar Abdullah -Sara has lost her rights after marrying Rajesh pilot -neither her husband or children can claim any rights in JK. But Omar Abdullah married Payal Nath, a non citizen of Kashmir. She becomes a citizen of Kashmir  and Children of Omar and Payal too get all rights in JK.

Anti rape laws 2013

The laws formulated by justice Verma were accepted all over India except state of JK. In Chandigarh stalking incident, anti stalking laws as per 2013 law were invoked, but this law has not been passed in JK.

Secularism and socialism in JK.

During Emergency Indira Gandhi amended the constitution by adding words ‘secular’ ‘socialst’ in the preamble. All state assemblies accepted it . Only exception is JK state assembly. The only area in India which is not ‘secular’ ‘ socialist’ in India is JK . The JK state assembly at that time had congress government . This fact is attached behind the amended Preamble and never bought before the Nation. Hence even though Hindus are in minority in JK they have never received benefits of minority

Devil of PRC -Permanant Resident Certificate

PRC is the Permanant resident certificate – according to this only people who were land owners, residing before 1944 and such conditions are residents in JK state and can avail the rights of voting, entry to colleges, buying property etc.

The Valmikis in Kashmir who were bought from Punjab are grade 2 citizens- they have no voting rights and are barred from any occupation but sweeping and scavenging and have no claims on any state benefits. About 2 lakh west Pakistan refugees from POJK have not got PRC since 1947 and are living in 200 camps within 5 km of LOC.

Discrimination against Jammu and Ladakh

The Representation of people’s Act is not implemented fully in JK . The delimitation of 2002 was not carried out in JK. Presently Jammu region, though has more population has 37 assembly seats, Kashmir valley with less population has 46 assembly seats and Ladakh has only 4 seats –this ensures that the voice of Valley will always dominate the JK assembly.

There are many such instances of Injustice. I have just highlighted a few. There needs to be a healthy and clear debate on 35-A and people of India need to be informed about the true facts.

Picture Credit: Twitter


About Nidhi Bahuguna 36 Articles
Housewife, nationalist , loves reading and counter media lies with proof.
Contact: Twitter