The cat is belled!

In the backdrop of Pulwama Attack, the justified rage of the public turns to the 'special' status of Jammu and Kashmir once again. Before proceeding to the crux of what significance this development holds for the country, it must be pointed out that radicalisation of Kashmiris is a disparate issue, best dealt with through the Vajpayee doctrine of "Insaniyat", combined with no countenance of separatists.

However, the provision empowering the state with 'special' status has always been the elephant in the room. Jammu & Kashmir, along with its sensitive topography, appears like a foreign policy issue, instead of a domestic one due to its status in our Constitution. There exists an unnecessary chasm between citizens of Kashmir and the rest of India. It borders on being trite, but nonetheless, sadly, must be reiterated – Article 370 and Article 35-A must go.

Article 370 details the relationship Kashmir shares with the rest of the country; Article 35-A grants permanent residents of Kashmir some special rights. From the get-go, the Constitutional relationship of India with this state has been adversely lopsided.

The state of J&K itself has done phenomenally well on its indicators as an Indian state should. It has grown by almost 7 per cent last year, ensured a greater number of schools per household and even health and connectivity outcomes have outperformed expectations. A big reason is that it is also heavy subsidies from the Centre. A study showed that it has received, from 2000-2016, 10 per cent of all Central funds despite having 1 per cent of the population. It is an economic powerhouse waiting to be unleashed. Article 370, very obviously, however, is still an impediment in restricting private or global investment into the state.

If Indians (non-Kashmiris) cannot invest in land or property, how can manufacturing firms or multinational corporations do? These could have provided jobs to the young people of Kashmir. It also stops public colleges such as medical colleges from adequately fulfilling vacancies. Professors cannot be hired from outside the state except in extremely low quotas. The situation ensures that unemployment increases, which make the advent of radicalisation more viable. Hence, Article 370, the pernicious basis of Article 35-A must go.

Article 370 itself is gender-neutral, but the way permanent residents are defined in the state constitution based on the notifications issued in April 1927 and June 1932 during the Maharaja's rule, seem biased against women. The 1927 notification included an explanatory note which said: "The wife or a widow of the state subject … shall acquire the status of her husband as state subject of the same class as her husband, so long as she resides in the state and does not leave the state for permanent residence outside the state." This was widely interpreted as also suggesting that a woman from the state who marries outside the state would lose her status as a state subject.

Valmikis (Dalits) were brought to Jammu and Kashmir (J&K) in 1957 by the State Government. From that time, the present and future generations are compelled to become sweeper and that too only in the Municipality of Jammu. Valmikies are not given the Permanent Resident Certificate (PRC) and they are eligible only for the post of 'sweeper'. This leaves them with only one option that is to take the broom and clear the dirty streets of Jammu. The youth of this community in J&K could be qualified to become teachers, lawyers, doctors, engineers, yet they are eligible for the post of sweeper only. There are West Pakistan Refugees and Gorkhas, and the PRC is not conferred on them, as a result, they are not entitled to property rights; employment in state government; participation in Panchayat, municipalities and legislative assembly elections; admission to government-run technical education institutions; scholarships and other social benefits, voting rights, right to join Central services. Women in J&K cannot choose her life partner outside the state. All of this is happening due to the implementation of Article 35A in the state of J&K. This Article is unconstitutional, discriminatory, and biased.

Article 35A enables J&K Assembly to define 'permanent residents' and allows it to give PRC to people in J&K. Though the PRC holders are entitled to various rights and privileges, which are denied to the non-PRC persons but this provision also gives legal sanction to discriminate even among the PRC holders. Article 35A is that part of the Constitution of India which was added by the President of India without getting it discussed and approved by Parliament. It is against the spirit of the Constitution of India. This provision discriminates on the basis of caste, class, gender, and place of origin, and it is in clear contravention to the fundamental rights enshrined in the Constitution of our country.

No one except those defined as 'permanent residents' with PRC are entitled to property rights, employment in state government; participation in Panchayat, municipalities, and legislative assembly elections; admission to government-run technical education institutions; scholarships and other social benefits, voting rights, right to join Central services. Thus, it discriminates against the rest of the Indian citizens. This Article has denied all the above-mentioned rights to various communities, like the Scheduled Caste Valmikies from Punjab, West Pakistan Refugees, Gorkhas, Women living in Jammu-Kashmir for the past six decades.

The Indian Administrative Services (IAS) officers, who retire after working in J&K for 30-32 years to ensure smooth administration of the state, cannot even buy a house in the state. Nor can their children study or work in any government institutions of the state. No industrialists invest here as they cannot own the land for his factory, which, if allowed, could provide employment to the locals. With the ulterior motive to keep the people belonging to Scheduled Caste away from political power, it has been decided that the seats in the legislature of the state shall not be increased for them till the year 2031, denying them representation in the legislature as per the ratio of their population. Tribals comprise nearly 15 per cent of the State's population, but political reservations for Scheduled Tribes are non-existent and they are denied social justice and equitable distribution of opportunities.

People from outside J&K are denied right to take up any government job, resulting in a serious dearth of qualified experts in professional educational institutions, including medical and engineering colleges. This has a detrimental effect on the quality of professional education and the local students are suffering. Qualified doctors, specialists and researchers from other states do not work in J&K. There is an acute shortage of doctors in super speciality hospitals and professors in the Medical Colleges.

As for Article 370, 45 Presidential Orders have been used to extend components of India's Constitution into J&K. Almost all Union List subjects are applicable, most of the Concurrent List ones, a handful of Schedules and 260 of 395 Articles. Article 370, via orders, has been modified so many times, it can be expelled from the Constitution.

It is important to debate the constitutional validity of Article 35A, which was inserted in the constitution, without even discussing and approving it in Parliament. Modern-day India certainly cannot allow such grievous forgery of the past to continue to darken the future of its citizens. Together we can ensure equality, liberty, and justice for the sufferers. This regressive, discriminatory, biased and unjust law must be repealed.

The myth of outsiders' invasion in J&K

J&K, a constitutionally privileged state in India, does exactly what the most anti-women countries do under its prevailing permanent residency laws. From 1927, when the Dogra autocratic ruler Hari Singh introduced the law, women of J&K were disqualified as 'permanent residents' if they married non-permanent residents. The archaic law was overruled in 2002 by the J&K High Court. But, in 2019, the women of the state still can't pass on their state subject rights to their children and non-permanent resident spouses.

Hari Singh had brought in the law as an economic protectionist measure against the influx of populations from neighbouring Punjab that was under British colonial rule. The law was inserted as Article 35A in the Indian Constitution through a Presidential order in 1954, eight years after J&K acceded to India on October 26, 1947. It was based on the terms on which J&K's popular leader Sheikh Abdullah negotiated Article 370 with New Delhi in 1949.

Kashmir's political leadership has been arguing that J&K is not the only state in India with prohibition on 'outsiders' to settle, and, therefore, Article 35A in their state should be left alone. This is true. But such regressive laws in India exist only because of xenophobic tendencies and irrational fears about 'an invasion' (both sociopolitical and economic) of 'outsiders', which holds no basis in reality. The common refrain today is that the influx of migrants from 'Hindu' India will unleash demographic change and dilute the religious identity of Muslim-majority Kashmir valley. The fact is, neither Hindus of Jammu nor Buddhists of Leh, despite being state subjects of J&K, have made any attempts to settle in the Valley in the last 72 years. On the other hand, while Kashmir insurgency evicted its entire indigenous minority, Kashmiri Pandits, Muslims have also moved out in massive numbers and settled in not only Hindu-dominated Jammu but also in other 'Hindu-dominated' cities like Kochi, Kolkata, and Jaipur.

Also, in the overwhelming majority of states where there are no prohibitions on the purchase of land by 'outsiders', the basic demographics and cultural identity of different ethnic groups remain intact. No economic or otherwise migration from one state to another has eroded the distinctness and diversity of India's states. In any case, in a world where cultures are being influenced, and constantly changing, primarily because of mass media and the internet, to think of living in silos is being regressive.