One of the most widely speculated entries to the new Cabinet led by Prime Minister Narendra Modi is that of his close associate from Gujarat and BJP President, Amit Shah, often described by admirers as the ‘Modern Chanakya’. Shah’s induction is being seen as a reflection of Modi’s commitment to implement the party’s core agenda to consolidate what has come to be known as the ‘Hindu Vote Bank’.
The core constituency of the saffron party is looking up to Shah for implementation of its long-pending agenda such as construction of Ram Temple at Ayodhya, Uniform Civil Code and annulment of Article 35A, issues which for long had been relegated to the back burner. For the first time, BJP’s manifesto for 2019 categorically stated it was “committed to annulling Article 35A” as the provision is “discriminatory against nonpermanent residents and women”.
Notwithstanding vehement opposition from regional parties in Jammu and Kashmir and some national parties, the fact remains that one of the most blatant violations of human rights has been taking place in the state under the cover of Article 35A. In fact, a large section of the people of the border state has been consistently denied certain fundamental and legal rights and continues to live in an atmosphere of discrimination and backwardness.
According to a detailed study by the Delhi-based Jammu & Kashmir Study Centre, one of the worst victims in the state have been women who continue to face severe gender discrimination. A blatant instance of such discrimination is the issuance of Permanent Resident Certificates (PRC) to those who come within the ambit of certain criteria defined by the state government. If a woman marries a non-PRC holder, her husband and children are denied basic rights such as the right to hold title of property, right to apply for government-run higher technical education or a government job, right to participate in the assembly and panchayat elections.
In effect, a woman marrying outside the state or a non-PRC holder is forced to leave the state and settle outside. Both Hindu and Muslim women are victims of this law.
Further, even six decades after they migrated from west Pakistan during Partition in 1947 and settled in J&K, Hindu migrants are still tagged with ‘refugee’ status and forced to live in ‘camps’. Even the third generation has been denied rights and privileges that were immediately granted to all those who migrated from Pakistan to other states in India. Here too, they are not issued PRCs and hence denied all associated rights.
The plight of Gorkhas who settled in J&K in the 18th century is no different. Their population is around one lakh spread across the state, including Kashmir Valley. They face big hurdles in getting the PRCs. Consequently, they continue to remain economically, socially and educationally backward.
In 1957, around 200 Valmiki families were brought from Punjab to J&K, following a Cabinet decision, specifically to be employed as safai karamcharis (sweepers). These families were told that the ‘permanent resident’ clause would be relaxed in their favour. However, their plight is that they are ‘permanent residents’ of J&K only to the extent of being safai karamcharis. After six decades, their families have grown and children have studied up to graduation and post-graduation. But no one can apply for government jobs or for admission to government-run professional institutes.
In a provision no less banal than racial apartheid, the educated youth from these Valmiki families are only eligible to be appointed as safai karamcharis.
All these discriminatory practices have been taking place under the refuge of a Presidential order called the Constitution (Application to Jammu and Kashmir) Order, 1954. It came into effect immediately and superseded the Constitution (Application to Jammu and Kashmir) Order, 1950. Besides carrying out many modifications and changes, this Presidential order ‘added’ the new ‘Article 35A’ after Article 35 to the Constitution of India.
Addition or deletion of an Article amounts to an amendment to the Constitution. And the Constitution can be amended only by the Parliament as per procedure clearly laid out in Article 368. But shockingly, Article 35A was never presented before the Parliament.
This Article has denied basic rights to many communities living within J&K for the past seven decades. It has also taken away the rights of all Indians living outside the state from settling in J&K, an integral part of India.
Article 35A enables the Assembly to define ‘permanent residents’ and to give them special rights and privileges, as well as to restrict the rights and privileges of all citizens of India who do not fit into this definition.
It is unfathomable as to how such a situation could exist in the free and democratic republic of India. No wonder, many are looking up to Shah to eliminate this discriminatory provision.