Srinagar, October 12 (KMS): Legal experts have called for people’s movement to protect Article 35 A.

Noted lawyer Zafar A Shah has cautioned if the 1954 constitutional provision was abrogated, J&K would lose the special status — permanent residentship, right to property and employment—and the move would impact the disputed nature of Kashmir as per the UN resolutions.

A New Delhi-based NGO, backed by Hindu extremist groups, has moved the Supreme Court seeking scrapping of the Article 35 A. The case is listed for hearing before the Supreme Court Registry next month. At a roundtable conference organized by Kashmir Centre for Social and Development Studies (KCSDS) here, Zafar A Shah said under the Article 35 A, the legislature of the territory has the power to define permanent residents, to make law for acquiring property and for providing employment.

“Three things are important here: permanent residents, employment restricted to permanent residents and state legislature’s powers with regard to settlement,” said Shah. “If the Article 35 A goes, it means the protection available to permanent residents will go and this protection will also go in case of employment and acquisition of property and scholarships.”

Then, he said, the definition of permanent residents would change and acquisition of property and employment would become available to outsiders, in J&K.

The Article 35 A is a provision that is not in the constitution of India. Instead it is an Article in application of the provisions of the constitution of India applicable to the territory.

“This provision arose out of the need of compulsion of limited accession of J&K with India, the UN resolution and the response of the Governor General of India (to Maharaja) that the temporary constitutional link between J&K and India will remain till the time the plebiscite is held in Kashmir,” said Shah.

“Doing away with the Article 35A will be totally against the UN resolutions which talk of plebiscite. It (demand for scrapping of Article 35A) is an ideology being persuaded and once they succeed in it, outsiders will have right to jobs and right to acquire property in the state,” said Zafar Shah.

He said the scrapping of the Article 35A would “lead to demographic changes, the ownership will change hands and the population ratio of permanent residents will become uncertain.”
“And tomorrow if India chooses to hold plebiscite in Kashmir, the question who has right to vote will become extremely uncertain,’ he said.

He cautioned scrapping of the Article would have “cascading effect” and if it was allowed that would imply that “we don’t want implementation of UN resolutions and then J&K would be like any other state in domain of India.”

He said given the importance of the Article 35A, it has become important for civil society, lawyers, doctors and people associated with all professions to start an “absolute people’s movement” for its protection.

Senior lawyer Mian Abdul Qayoom said the Article 35A has been challenged in 1956, 61, 70. “But all three petitions were dismissed. So the Supreme Court was clear that the President has the power to pass the constitutional order and it is beyond challenge,” he said.

He said the new petition has quoted the constitutional amendment of 1971 under which the ruler has been defined as per the new amendment.

“They have challenged that by virtue of that amendment, the definition of the ruler gets obliterated and the definition of the ruler has to be decided afresh and vis-a-vis definition they have sought whether the constitutional order is valid.” “There is a conspiracy,” said Qayoom.

He said if the Supreme Court decides to put the case before the larger bench of nine judges and in that case the previous orders of the apex court would automatically become invalid.

He said the BJP was holding government in New Delhi. “They want to do away with this Article so that they can hold the plebiscite tomorrow to their benefit,” said Qayoom.
“We must defend the Article 35A,” he said. “We have a very strong case.”

KCSDS Resolution

The civil society unanimously slammed the puppet administration for its lackadaisical approach to the serious issue of Article 35A.

“It will have disastrous consequences for the demography and Muslim majority character of the state if such forces succeed in their nefarious designs. The writ petition for abrogation of Article 35A is a conspiracy to change the demography by opening the flood gates of permanent entry points into Kashmir,” said the resolution.

The participants resolved to fight for preservation of the Article 35A which provides protection to state subject law and other specific rights that restrict land owning and acquiring jobs in the territory to permanent state subjects only.

It further resolved to create a task force for informing public about importance of retaining Article 35A till the final resolution of Kashmir dispute through seminars, conferences, symposia and print and social media.


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