Hiding behind Article 370, how Nehru pulled a fast one on India with the dehumanising Article 35A

The bane of Article 370, thereby Article 35A, has finally been put to rest for good. The Supreme Court, in a unanimous judgment, has upheld the abrogation of the provision that had established an utterly discriminatory regime of rights violations in Jammu and Kashmir for decades.

The devil was not so much in Article 370 as in Article 35A that was illegally added to the Indian Constitution via an elaborate, though blatant, fraud and this fast one was pulled on India by none other than Jawaharlal Nehru as the first prime minister of India.

Article 35A allowed the state to grant special privileges to a separate and exalted class of ‘permanent’ residents that it created. These privileges came in the attire of rights not available to the neediest, and downtrodden, and the most marginalised in Jammu and Kashmir.

How Article 35A came to be incorporated in the Indian Constitution is a murky tale of subterfuge and Nehru’s mendacity.

It was incorporated directly through a Presidential Order on May 14, 1954, bypassing Parliament. Article 35A came into being when the then President of India, Rajendra Prasad, issued an order called the Constitution (Application to Jammu and Kashmir) Order on May 14, 1954. It came into effect immediately and superseded the Constitution (of India) (Application to Jammu and Kashmir) Order 1950.

But, this added a new provision—Article 35A—to the Constitution and any amendment to the Constitution—addition or deletion—is subject to ratification from Parliament under the powers accorded to the national legislature under Article 368. Incidentally, this article was never tabled in Parliament.

So, essentially, Nehru took the nation for a ride and bloodied the nose of Indian Parliament, overriding its absolute right to legislate amendments to the Constitution.

What Article 35A essentially did was that it empowered the Assembly of J&K to define what constituted ‘permanent residents’ and then proceed to lavishly shower upon them some special rights and privileges. As it went, this category of ‘permanent residents’ was defined in an extremely narrow manner to keep most of the people—in some cases entire communities—out of its scope.

Needless to say, this distinction was arbitrary and malafide since the permanent residents were accorded illogically discriminatory powers of Himalayan proportions. Debilitating, unconstitutional and inhumane restrictions were placed on non-state subjects when it came to such basic and fundamental rights as public employment, voting rights, acquisition of property, settlement in state, even extending to such rights as claims to scholarships.

The writ of rights guaranteed under the Indian Constitution came to die a sudden death in Jammu and Kashmir due to these restrictions. Non-state subjects did not even have the Right to Life in Jammu and Kashmir under the regime of per Article 35A.

Let’s figure how the different sections of the population who have been discriminated positively in the rest of India fared in Jammu and Kashmir under the aegis of Article 370 and Article 35A.

Women got the shortest end of the stick under this regime of discrimination. Women from the state who married non-state subjects or those who were not the permanent residents of Jammu and Kashmir lost even their right to residency. West Pakistan refugees, who came to India from Pakistan during Partition in 1947, were not entitled to Fundamental Rights guaranteed under the Constitution.

These articles created an island within India, where the full writ of the Constitution did not run large and which system then fed terrorism. This regime of exclusive privileges ensconced as rights undermined, nay challenged, the authority of the Fundamental Rights guaranteed across the land under the Constitution. It embellished a sense of separate identity for the state, which hampered its complete integration with India.

Several fundamentally empowering provisions enshrined in the Constitution such as Right to Education, Right to Information etc have been denied to several communities of non-residents irrespective of the fact that they had been residents of the state since Independence.

Back in 2015 when I had broken the story that the Sangh Parivar was readying a legal challenge to Articles 370 and 35A, Jagdeep Dhankhar, now the Vice-President of India, had told me how these provisions were an “outrage” on the Constitution of India.

“Article 35A was positioned in the Constitution by way of an amendment which was an executive fiat without any reference to Parliament. Ironically, it was placed in Part III of the Constitution that deals with Fundamental Rights and yet it provides for protection to existing and future laws in Jammu and Kashmir that may be violative of these very human and fundamental rights,” he had told me.

“Due to Article 35A, say for example, a non-permanent resident of J&K can vote in Lok Sabha elections, but not in local body elections. One can become the Prime Minister, but cannot even vote in the state Assembly elections. The non-state subjects can become IAS and IPS officers, but cannot become a peon in the state,” he had added.

Jammu and Kashmir has long since suffered for these ‘privileges’. The private sector could not venture into healthcare due to restrictions on owning property. The result was ageing hospitals. Owing to restrictions on the ownership of property, no good doctors were able to practice there. Industrialisation went down the drain and so did tourism.

I remember visiting the Valmiki colony of Jammu just after writing the story in 2015. Since children of non-state subjects were not given admission to colleges, the morale of the youth of this community was broken to bits.

Figure this: The Valmikis were brought from Punjab to Jammu and Kashmir during 1957 owing to a strike by the safaikarmacharis back home. But, shockingly, they were granted Permanent Resident Certificates or PRC on the extraordinarily discriminatory proposition that their future generations could stay in the state only if they continued to be safaikarmacharis.

Article 35A was surreptitiously added to the Constitution based on Article 370. This article, though an amendment to the Constitution, was not added by Parliament, but straightaway by a Presidential Order.

Therefore, in a brutal act of overreach, which was nothing short of the murder of Indian democracy, the President of India, who does not have any legislative powers and is just a titular head of the State, became and performed the function of Indian Parliament.

Moreover, as pointed out by several, even the latest bare acts of Indian Constitution do not have any entry of Article 35A!

The author is News Editor, Firstpost. He tweets from @SiddharthaRai2. Views expressed are personal.