We Indians are often made to feel guilty by Kashmiri politicians and their patrons as well as International human rights professionals about continuing human rights violation against citizens of Jammu & Kashmir. Even for politicians at Srinagar , Jammu and Ladakh don’t matter much.
On eve of SARC samiti at Kathmandu,Nepal I would like to highlight specific issue of human rights violation perpetrated through constitution by politicians of Kashmir valley. I will like to speak about Kashmiri Pandits who are living as refugees and displaced persons. We have forgotten their plight as their families are suffering in relief camps for more than thirty years under the watch of J&K rulers namly two elite families. What about their future generation and children. Most of the children have crossed 21 years of age and are still away from their motherland.
There has been lot of breast beating against Art 370 and debate about merger of J&K with India. The simple truth is that article of accession of J&K to India was signed on 26th October, 1947 and Art 370 was enacted on 6th Feb, 1954. The accession was ratified by J&K Constituent Assembly on 26th January, 1957. So, the debate whether J&K accession is conditional or not is infructuous. The Kashmiri politicians are afraid of a debate on Art 370 simply because it will expose their exploitation of their own people.
For the present, I am going to talk of a less discussed, lesser known pernicious clause, article 35(A) that was inserted into constitution through a Presidential order with a discreet but firm push from Pandit Nehru. Though any amendment to constitution has to be passed by the Parliament, this amendment was never presented or passed by the parliament. It was added to the constitution stealthily as an annexure. This was a breach of the basic structure of our constitution. The amendments with its multiple sub-clauses are mentioned only in Appendix-I and Appendix-II of Indian Constitution. This stratagem has worked for decades as even senior legal luminaries are not aware of this clause though they speak eloquently about J&K and Indian constitution. This article 35(A) was enforced in Jammu & Kashmir through the Constitution (Application to Jammu & Kashmir) Order, May 1954.
Article 35(A) states that: “Saving of laws with respect to permanent residents and their rights: Notwithstanding anything contained in this (Indian) Constitution, no existing law in force in the State of Jammu & Kashmir, and no law hereafter enacted by the Legislature of the State – (a) defining the classes of persons who are, or shall be permanent residents of the State of Jammu & Kashmir, or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part”.
Section 6 introduced under this article by the State Government reads and enforced zealously says: “(I)Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954, (a) he was a state subject of class I or of class II, or (b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to this date and (II) any person who, before the fourteenth day of May, 1954 was a State Subject of class I or of class II and who, having migrated after the first day of March, 1947, to the territory – now included in Pakistan, returns to state under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State”.
This meant, no persons who had crossed over to the state after May 1944 would be considered eligible for citizenship rights. This resulted in denial of citizenship rights to the Indians who were not Permanent Residents of the State as per the definition of Permanent Resident of the State. The second provision granted full citizenship rights to those who migrated from the State to Pakistan on or after March 1, 1947 and adopted Pakistani citizenship in case they returned to Jammu & Kashmir (read, Muslims).
This article 35(A) and provisions drawn under it by J&K Constituent assembly empowered J&K governments to deny citizenship rights to refugees from West Pakistan (from Punjab side). It also made it impossible for citizens of India for ever becoming permanent residents of J&K. It also stopped many Indian laws’ implementation in J&K.
Women i.e. nearly half the population of J&K are victimized and suffer due to article 35(A). J&K government passed a resolution depriving J&K women to right to citizenship and inheritance if they married outside J&K to an Indian who is not permanent resident of J&K. While if a man who had gone to Pakistan returns and marries a girl from J&K , he would automatically become a permanent resident of J&K. Similarly, a woman from outside marrying a permanent resident of J&K would automatically become permanent resident of J&K enjoying all the benefits that citizen of J&K enjoyed. Thus, women of J&K were made second class citizen, she and her children losing all rights to property and other benefits. It was only because of J&K High Court decision that a woman marrying outside J&K now retains her rights as state subject in a limited way. She can enjoy her property while she is alive, but she cannot bequeath it to her children or any other member of the family. Her children cannot enjoy the privileges of being permanent residents in studies or jobs. Thus, women in J&K are deprived of equality before law by a constitutional provision which is patently violative of her rights.
Apart from women, there are three other categories of Indian citizens who are suffering for more than 40 to 60 years due to this unconstitutional l provision in constitution -
· Nearly 2 lac refugees from Lyllpur, Pakistan who migrated to J&K in 1947
· About 50000 families from POJK in J&K who took shelter in J&K after 1948 attack by Pakistanis, now numbering nearly 12 lacs, of whom 8 lacs live in Jammu in 56 camps.
· Apart from this, nearly 1 lac displaced persons from Chhamb, gifted to Pakistan after victorious 1971 war because of state government apathy.
Refugees from West Pakistan have become stateless citizens who have no rights. They can vote for Central elections but not for state elections! They cannot buy property, educate their children or gain employment in J&K. They have been living in refugee camps for over 6 decades now. Most of these refugees are from SC and OBC category and no reservation benefits flow to them. While Mr. Manmohan Singh hailing from same region was lucky that his family didn’t migrate to J&K, but to Punjab, others of this region whom fate brought to J&K were not so lucky and have suffered endless indignities for generations. No government of India has been able to do anything for them because of this clause.
Third category of Indian citizens who have suffered immensely are the citizens of Pak Occupied J&K (POJK) who had to seek refuge in J&K after 1948 attack of Pakistani forces under the garb of tribals. They number around 12 lacs today and stay mainly in refugee camps in Jammu. They are not being granted any rights. The argument is that since POJK is considered Indian territory, if J&K government gives them refugee status, India will technically give up its right on POJK. So, they lead an insufferable life as stateless citizens though they are citizens of J&K in every way. They too enjoy no rights as citizens and live in refugee camps since last six decades.
The biggest paradox is that J&K assembly has some seats reserved for representatives of POJK under provision of law. However, these seats have never been filled by representatives of POJK. The underlying reason is that they belong to Shia community which is in majority in POJK and Sunni leadership of valley cannot brook any representation from rival sect.
Finally, there are displaced people of 1971 war numbering nearly 1 lac now. Though, they are not direct victims of Article 35(A), they have been suffering due to central and state government apathy. They were displaced not because of war, but because victorious India handed over 18000 sq km of Chhamb to Pakistan under Simla agreement. They have also not been rehabilitated for last 40 years for no fault of theirs. The compensation they have received is paltry Rs. 8500/- per family, though they were promised homes and land! They too live in makeshift refugee camps for over 40 years.
I have not talked about large number of law that blocked using this clause 35(A). I have not talked of travails of 4 lac Kashmiri Pandits, who were the last wave of Hindus who were victims of ethnic cleansing in 1989-90. Focus of this essay was the tragic story of faceless, stateless citizens of India who have suffered gross human rights violation and dignity under an unconstitutional clause.
I hope some compassionate parliamentarian would raise the issue of lacs of hapless children of India and help them enjoy the spirit of freedom that we celebrate on every 15th August.
Written sometimes back by a Veteran J&K Leader.Some of the portions added or omitted by Me as per requirement of the flow of the article.