Plea against special rights to Kashmiris puts Centre, Jammu and Kashmir govt in a fix

A petition in the Supreme Court challenging Article 35A of the Constitution, which grants special status to permanent residents of Jammu and Kashmir, has put the Centre and J&K government in a fix. It is this provision and not Article 370 that prevents rest of Indian citizens from acquiring immovable property and exercising voting rights in Jammu and Kashmir. The court is taking up the plea for hearing on August 17.

The petition filed by 'We the citizens', a Delhi-based non-governmental organisation registered as a society, through its president Sandeep Kulkarni was first heard a year ago on August 19, 2014 by the Bench of Justices H L Dattu (now Chief Justice) and S A Bobde. The court then sent notices to the Centre and J&K government.

A flurry of activity has been under way over the past one week in the Union law ministry, Jammu and Kashmir division of the ministry of home affairs as well as in the government of Jammu and Kashmir to formulate a response before the apex court.

A senior official admitted that they were still gathering inputs from various agencies on the implications, as in Kashmir, both the mainstream parties – the National Conference as well as ruling People's Democratic Party – have warned the government of dire consequences on the issue. Both of them want the Central government to oppose the petition tooth-and-nail.

Last year when the petition was filed, the BJP, then in the Opposition in Jammu and Kashmir and vying for a mission 44 ahead of elections, had not only supported it vociferously, but also promised to annul this legal provision to make citizenship laws uniform all over country. But now that it is sharing power with the Peoples' Democratic Party (PDP), it is becoming increasingly difficult for the law department of Jammu and Kashmir government, as well as for the Central government to either support or oppose the petition.

Admitting the dilemma, a senior BJP leader said supporting the petition at this juncture would mean playing in the hands of separatists, who will be out to create anarchy in the Kashmir Valley, but on the other hand opposing it will hit the party hard politically in its bastion, the Hindu-dominated region of Jammu.

The Supreme Court has twice struck down the challenge to Article 370, and so the petition argues that neither judgment considered the issue of the President's powers to put Article 35A in the Constitution in the garb of modification. It, therefore, urged the court to examine Article 35A that is in conflict of Articles 14, 19 and 21 for creating a special class of citizens within a class of citizens of India.

The Article 35A that forms basis of Permanent Resident law replicated actually a state subject law promulgated by the Dogra king Maharaja Hari Singh in 1927 following a strong campaign by Kashmiri Pandits who were opposed to the hiring of civil servants from Punjab, because it had affected their representation in the Dogra administration. The Kashmiri Pandits' agitation of the time did not affect the Muslim majority because the Dogras as a policy kept Muslims largely out of the administration. Also, the law was brought to prevent rich landlords from the erstwhile undivided Punjab to claim property and permanent resident rights after marrying Kashmiri Muslim girls. A provision was incorporated that Kashmiri girls, marrying outside the state, will forfeit their immovable property rights.