Talk:Article 35A of the Constitution of India

Review for neutrality

I tried my best to develop the article and remove the templates on neutrality issues and all, in my recent edits. I would like to invite any of the editors to review the article in the present stage and give their thoughts and opinions. Please feel free to point out neutrality problems, if any, or suggest any further improvements. Thank you. — Vamsee614 (talk) 15:16, 22 March 2017 (UTC)

I don't think we need to worry unduly about neutrality. I think there are two points that still need proper clarification:

• Article 35A became necessary as part of the extension of Indian citizenship to the J&K "state subjects" (part of the Presidential Order of 1954). The extension of the Indian constitution was only possible with the concurrence of the state, and the state was empowered (both in the Instrument of Accession and the Article 370) to require exceptions as part of such extension. The alternative would have been not to extend the relevant clauses at all. Note the clause 1(d) of the Article 370: subject to such exceptions and modifications as the President may by order specify.

(This has a bearing on the claim that the Article 35A was created by Presidential decree rather than legislative action. The legislative action needed for Article 35A is not that of the Indian Parliament but rather that of the J&K Constitutive Assembly. It is an exception allowed by the Article 370, not a new provision of the Indian Constitution).

• There were laws in J&K (princely state) regarding the rights of state subjects, just as there were such laws in other princely states. These need to be discussed as part of the Background.

I admit that both these issues need further research on our part and appropriate sources. -- Kautilya3 (talk) 21:42, 22 March 2017 (UTC)

The second one can be easily added from Noorani's article in the first step, but for the first one, I need the appropriate sources. Citizenship part is again there in the Noorani's article, but for the remaining part we've to research more. For now, I only have one source that roughly deals with that point. — Vamsee614 (talk) 04:36, 23 March 2017 (UTC)

Great, your explanation is quite excellent! -- Kautilya3 (talk) 08:22, 24 March 2017 (UTC)

@Kautilya3: Do you have an idea regarding the PRC status of a child who is born to the parents, one of them being a permanent resident of J&K and another being an outsider? Because I want to cross verify this claim in the article: It facilitates the violation of the basic right of a person to ‘marry a partner of his/her choice’ by not giving the heirs any right to property if the person marries a partner not holding PRC. Therefore, his/her children are not given Permanent Resident Certificate and thereby considering them illegitimate for inheritance – not given any right to such a person's property even if the person is a permanent resident. (I don't have access to that source.) Thanks! — Vamsee614 (talk) 08:21, 30 March 2017 (UTC)

I have no idea. But, I have sent you a paper that discusses all the issues in a balanced way. -- Kautilya3 (talk) 10:55, 30 March 2017 (UTC)

The said book does exist on amazon.in and on the publisher's web site. This review says that it is an edited collection of articles by "experts". So, "Pradeep Kumar" is presumably not the author of the cited information. No page numbers have been provided. So, we really have no idea whose views are being cited here. The editor is said to be an assistant professor but also a "research scholar" (which normally means some one working towards a Ph.D.) There is indeed a research scholar named Pradeep Kumar Sharma at the same University who is active in the topic.

The review also says that the publishers include the Adhivakta Parishad (a Sangh Parivar organisation) and Jammu and Kashmir Study Centre, which I would characterise as a Hindu interest group. The authors mentioned in the review are members of the J&K Study Centre.

So, I would say the information is dubious unless full citations and quotations are provided. -- Kautilya3 (talk) 14:25, 30 March 2017 (UTC)

Ah, now this became more curious and doubtful! That content was there in the article from the time, when lot of nonsensical stuff was present. So it was probably added by the same editor(s) who added the other stuff. But it can be only verified by a J&K legal expert, or we've to gain access to that book. Unfortunately, this specific rule position of the law is not discussed in the paper you sent me. — Vamsee614 (talk) 18:33, 30 March 2017 (UTC)

• "It facilitates the violation of the basic right of women to ‘marry a man of their choice’ by not giving the heirs any right to property if the woman marries a man not holding PRC. Therefore, her children are not given Permanent Resident Certificate and thereby considering them illegitimate – not given any right to such a woman’s property even if she is a permanent Resident."

^ This was the original version of content present in the article. Later I modified it, making the claim gender neutral. — Vamsee614 (talk) 18:58, 30 March 2017 (UTC)

You can't make it gender-neutral. It affects women. In the Cottrell article, you find:

Previously, a Kashmiri woman’s ‘Permanent Resident Certificate’ was valid only until marriage and would be renewed only if she married an ‘in-state’ man.

Even after the High Court ruled against such discrimination, the Assembly was trying to overrule it (kind of like the Muslim Women's Bill of the Indian Parliament that overruled the Supreme Court). Until recently, the State government officials didn't recognize the High Court ruling. So the discrimination persisted.

Presumably the High Court didn't say that her children would become permanent residents. (In a male-dominated society, the children's rights are inherited from the father rather than the mother.) So, the children are still affected. There is nothing wrong with the content, but just the wording: stuff like violates basic rights, children become illegitimate and so on. -- Kautilya3 (talk) 23:21, 30 March 2017 (UTC)

• Here is an article from the Jammu and Kashmir Study Centre itself, on Article 35A. It has no mention of such a claim. I feel it is someone's WP:OR without any reasonable evidence. So I think we should remove that content from the article. — Vamsee614 (talk) 19:09, 30 March 2017 (UTC)

The content was added by Arvindjksc, the same guy whose complaint I responded to above, but I didn't notice the date of his complaint. He seems to be long gone. He is obviously documenting the jksc views. Ideally, we need WP:THIRDPARTY secondary sources. -- Kautilya3 (talk) 00:28, 31 March 2017 (UTC)

References

Criticism

We have to distinguish between the Article 35A itself, which is an allowance given by the Indian Constitution, and the state constitution and state laws which define permanent residence and the rights and privileges that accrue from it. Criticism of one should not be confused for the other.

I am sorry to say that while the Indian constitution is entirely liberal and generous in providing for such special privileges, the state laws seem positively draconian. I couldn't find any way for anybody to acquire a permanent resident status except hereditarily. No matter how long one lives there, one can't buy a house, can't vote and and can't go to the University, and this will go on for generation after generation! I don't know of any other country (let alone a state) that has laws like this.

Hyderabad/Telangana had mulki reservations that were far more mild (certain percentage reservations in Universities and jobs etc.) but they got struck down by the Supreme Court as being unconstitutional. In J&K on the other hand, the constitution permits it and J&K abuses it. This is really strange! The business with gender discrimination is truly scandalous. -- Kautilya3 (talk) 02:54, 31 March 2017 (UTC)

Yes. And the state law itself does not allow gender discrimination, as ruled by J&K High Court several times. The Constitution of Jammu and Kashmir also provides all fundamental rights which the Indian Constitution provides. But the problem is with the implementation of the State Government and its Acts. Also every legal gender discrimination cannot be tied to Article 35A. The Hindu women in the rest of the India even, did not have the equal property inheritance rights as men till 2005 Ammendment of 1956 Hindu Act. Muslim women don't have even now, for that matter. (Though the references discuss the legal position years ago, there hasn't been any modification since then and the same situation prevails till date; UCC is a very necessary change.)

I couldn't find any way for anybody to acquire a permanent resident status except hereditarily. No matter how long one lives there, one can't buy a house, can't vote and and can't go to the University, and this will go on for generation after generation! — This, I agree, is unjust and supported by the Constitution. So its clearly a controversial point.

As you're saying we've to distinguish Article 35A and state laws, the argument of critics is that Article 35A is the very provision which permits the J&K state to allow such discriminations through its autonomy in those particular aspects. So we need to be careful while distinguishing both things, and look for reliable sources which broadly discuss these issues categorically(which law allows what). --- Vamsee614 (talk) 08:55, 31 March 2017 (UTC)

I have added plenty of sources that discuss the issues from a scholarly point of view. Here are some more newspaper sources:

• J&K: legalised discrimination, The Hindu, 26 March 2004.
• Rekha Chowdhary, Kashmir vs Women, Daily News & Analysis, 23 April 2010.
• RSS think tank speaks up for SCs in Kashmir, The Hindu, 14 October 2015.
• West Pakistan Refugees: Centre backs Mehbooba Mufti amid voices of protest in Valley, India Today, 23 December 2016.
• Refugee vs refugee turns into Kashmir vs Jammu: Identity certificates spark protests and violence, Indian Express, 27 December 2016.
• Permanent Resident Certificate row, Daily Excelsior, 12 March 2017.

Please stay off other tangents like Hindu inheritance or whatever. This article is about permanent residence (citizenship by another name). -- Kautilya3 (talk) 10:31, 31 March 2017 (UTC)

Unfortunately in J&K, the permanent residence(or citizenship) is dealt in a very similar way as 'property inheritance' is dealt in the rest of India. So I drew that comparison pointing the gender bias in both. And the argument of locals is that such unusual provisions mainly protect the state from demographic changes. Anyway I'll look up for more analysis in the sources you provided. — Vamsee614 (talk) 14:53, 31 March 2017 (UTC)

References

2019 panic

There was a surge in troops in Jammu and Kashmir, and speculation is rife in Kashmir that something is happening to Article 35A. But nothing has happened to Article 35A and nothing is likely to happen until the Supreme Court hearings happen. So, no changes to this page are warranted. -- Kautilya3 (talk) 10:44, 3 August 2019 (UTC)