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.
No comments:
Post a Comment