Article 35A uncertainty is like playing with fire

Kashmir is facing a massive mobilisation on the question of the constitutional validity of Article 35A of the Constitution, under which it’s the state that decides who its permanent residents are, for only such persons may own property in the state, get government jobs or student scholarships.

The Valley has ground to a halt. Strike calls united separatists of all shades, key mainstream parties and major civil society organisations. A situation like this is an open invitation to troublemakers from across the border.

After an adjournment last year, on Monday the Supreme Court was to begin hearings on the Article 35A issue, brought before it by a RSS-linked NGO. The hearings have been put off for administrative reasons, as one member of the three- judge bench that will hear the petition is available only from August 27.

The J&K government and the Centre have also urged the court to postpone hearing the matter, which arouses great emotion in the Valley and can lead to violence. Their plea was that panchayat polls are due and that the Centre has appointed an interlocutor for Kashmir to carry on dialogue with the people. Presumably these tasks will be hampered if the hearings on the validity of Article 35A begin and lead to a disturbed public atmosphere.

It can be argued that it’s the insufficient awareness of the situation by the Supreme Court that has somewhat helped drag out the matter. In the first instance, when the NGO brought its petition, the court should have straightaway gone into the question of its maintainability.

This is because it is Article 35A which confers Indian citizenship on those deemed to be permanent residents of J&K. If this article is struck down, the people of Jammu, Kashmir and Ladakh will cease to be citizens of India. In such an event, their incorporation into Pakistan can only be a matter of days, if not hours.

Instead of subjecting the petition questioning the validity of Article 35A to serious scrutiny on its maintainability, CJI Dipak Misra has indicated that a three-judge bench, which he leads, will decide whether the case should be sent to a Constitution Bench. This is like feeding the fire.

The validity of Article 35A is being questioned because it was incorporated by the President in 1954 though a constitutional order based on the authority conferred on him to pass such an order, and not through an amendment of the Constitution by Parliament. Even the blind can see that Article 35A is a mere offshoot of Article 370, which was incorporated into the Constitution after a debate in the Constituent Assembly. This became necessary as Maharaja Hari Singh did not “merge” with India but only “acceded” to the Union on specified conditions, such as retention of autonomy.