Art 370, 35(A) have become insidious, discriminatory: Govt sources

Art 370 and 35(A) of the Constitution, which were supposed to be temporary and transient, turned out to be an elephant in the room and discriminatory and insidious in character that had to be done away with, government sources said.

Giving a background on the need to do away with these provisions, steps for which were taken in Parliament today, the sources said there exists an unnecessary chasm between citizens of Kashmir and rest of India. It borders on being trite but nonetheless must be reiterated that the two Articles must go.

While Article 370 details the relationship Kashmir shares with the rest of the country, Article 35 A grants permanant residents of Kashmir some special rights.

The sources said, from the word go, the Constitutionsal relationship of India with Jammu and Kashmir has been adversarily lopsided.

India has ensured that the states with the Mizo and the Naga populations with Constitutional safeguards such as protecting their social practices. India as an assortment of examples where it has performed positive discrimination for groups and states, they said.

The problem, the sources said, to put it succinctly, is that with Kashmir the positive discrimination has tended to be insidious. Instead of taking a legislative route, Article 35-A was passed through a Presidential order. It subverted the law-making powers of the legislature, granted by the Constitution. They cannot amend the Constitution. Even an ordinance, which this was most decidedly not, has to be passed by Parliament, they pointed out.

The order, passed in 1954 by the President, was due to fulfilling Article 370 (1) (d). Article 370 itself was supposed to be temporary; the first word of the Article is temporary. It still sits under Part XXI which is titled "Temporary, Transitional and Special Provisions, the sources said.

They said the state of J & K itself has done phenomenally well on its indicators as an Indian state should. 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? These might 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 sources said.

"These and many more ensure that unemployment increases, which make the advent of radicalization, more viable. Hence, Article 370, the pernicious basis of Article 35-A must go," they said.

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 -- seems 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, they pointed out.

"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," they said.

The only way to repeal Article 370 would be by the President through a notification but not without the concurrence of the Constituent Assembly of Jammu and Kashmir. The Constituent Assembly, of course, disbanded in 1956 and almost all members are presumably dead.

"Before dissolution, the Constituent Assembly neither recommended abolishing Article 370, neither did they advocate for it to be permanent. As for Article 370, 45 Presidential Orders have been used to extend components of India's Constitution into Jammu and Kashmir. Almost all Union List subjects are applicable, most of the Concurrent List ones, a handful of Schedules and 260 of 395 Articles," the sources said.

"Article 370, via orders, has been modified so many times, it can be expelled from the Constitution as well without taking 'concurrence' of the now-defunct Constituent Assembly. The Constitution has been recognised as a living document, after all," the sources added.