Daily Times

The concept of Kashmiriyat defines the expression of shared history, culture, and language existing in the State of Jammu and Kashmir (J & K) irrespective of race, colour and religion. Kashmiriyat remained an exclusive concept excluding all those who did not belong to the State of J & K.

Kashmiriyat made the locals launch a struggle for securing the state jobs and denying jobs to non-Kashmiris. The struggle led to surfacing the distinction between a mulki (a local) or a non-mulki (outlander). There emerged a need to define these terms. On January 31 1927, Maharaja Hari Singh settled the meaning of the term mulki (or State subject) in terms of the Hereditary State Subject through legislation, the Hereditary State Subject Act of 1927. A modified version of the act was passed on April 201927. In 1932, however, a new challenge emerged how to secure the mulki rights to have mulki jobs. Consequently, on June 27, 1932, Maharaja Hari Singh promulgated another ordinance declaring (all emigrants from the State of J & K to the foreign territory) State Subjects including their descendants born abroad up to two generations. In the notifications issued in 1927 and 1932, the Maharaja created various categories of residents (with some being called permanent residents with special rights). The law did not discriminate between male and female State Subjects. The law applied to both. The State Constitution of 1939 protected both the notifications of 1927 and 1932.

On July 20, 1952, an agreement to establish the relationship between the State of J & K and the Indian Federation took place. The agreement is called the Delhi Agreement of 1952. Sheikh Abdullah of National Conference (from Kashmir) and India’s Prime Minister Jawaharlal Nehru signed the agreement. In the agreement, it was decided that the State’s permanent residents, State subjects, would not only be citizens of India (under Article 5 of the Indian Constitution), but they would also enjoy special rights and privileges given the State legislature under the State Subject Notification of 1927 and 1932 related to the acquisition of immovable property, appointments to services and like matters. That is, within the ambit of Indian citizenship, the State legislature would have the power to regulate the rights and privileges of permanent residents or State Subjects as defined in a State Order of 1927. Only the State’s legislature would be empowered to confer, without modification or not, those rights and privileges on State subjects won in struggles in 1927 and 1932.

Article 35-A was considered a violation of fundamental human rights and discrimination against those who had been living in the State for decades

As a result, Article 35-A was added; empowering the Legislative Assembly of Kashmir to legislate on the privileges such as to purchase land and unmovable property, to vote and contest elections, to seek the government employment and to secure other state benefits such as high education and healthcare. Non-permanent residents, including Indian citizens, however, were not entitled to these privileges. It was also agreed that permanent residents of Kashmir shall have the same fundamental rights enjoyed by an Indian citizen under the Indian Constitution. It was also agreed that special provision should be made in the laws governing citizenship to provide for the return of the State’s permanent residents who migrated to Pakistan in connection with the disturbances of 1947 or fear of them as well as of those who had left for Pakistan earlier but could not return. If they returned, they should be entitled to the rights, and privileges and obligations of citizenship.

On May 14, 1954, to implement the Delhi Agreement of 1952, with the concurrence of the Kashmir’s Constituent Assembly, the President of India issued the Presidential Order of 1954 also called the Constitution (Application to Jammu and Kashmir) Order of 1954. The Order substituted the term State Subjects with the term Permanent Residents of Jammu and Kashmir, having dual nationality of the State and that of India. The State Constitution of 1956 (Sections 5-A to 5-F) also protected both the notifications of 1927 and 1932 under Part III Permanent Residents. Under the law, women could remain permanent residents until marriage. Afterwards, they had to seek a fresh right to remain permanent residents. If a woman married a non-resident, she automatically lost her permanent resident status.

A right-wing Hindu political party, the Praja Parishad, demanded the revocation of Article 370 and the full merger of the State of J & K into India. The party’s leaders were against the distinction between “state subjects” and Indian citizens. Afterwards, other parties such as Rashtriya Swayamsevak Sangh (RSS) and Bharatiya Janta Party (BJP) in Kashmir also joined the Praja Parishad in its efforts to abrogate Article 370. In 2002, a ruling of the Kashmir High Court made it clear that a woman would remain a permanent resident even after marriage to a non-permanent resident and enjoy all the rights of a permanent resident. In 2004, however, the People’s Democratic Party’s government, led by Mehbooba Mufti passed a law called Permanent Residents (Disqualification) Bill of 2004, which overturned the court judgement.

In 2014, Bharatiya Janata Party (BJP) of India made part of their electoral pledge to abrogate Article 370 after winning the 2014 general election. The party wanted to integrate the State fully into the Indian Union. The BJP won elections in May 2014 and then in May 2019. In June 2018, the majority coalition ruling the State of Kashmir faced a problem and in November 2018, the Governor dissolved the State’s legislature to impose the governor’s rule. On December 19, 2018, Indian President Ram Nath Kovind issued a Presidential Proclamation, invoked Article 356, assumed the powers of the State’s Governor, declared a constitutional emergency, and imposed the President’s rule in the State. On August 5, 2019, as there was no legislative assembly of the State, the Indian Home Minister sent a recommendation to Indian President to abrogate Article 370.

With the abrogation of Article 370, Article 35-A was also gone. The facility of Article 35-A had raised certain objections:

First, Article 35-A was considered a violation of fundamental human rights and discrimination against those who had been living in the State for decades.

Second, Article 35-A denied the right of being the State Subject to Kashmiri women if they married non-residents and hence disqualified them from having property rights in Kashmir. Third, Article 35-A had kept the State backwards, as no investor was ready to invest in the State for being denied equal rights before the law.

Non-residents would get rights to own property and domicile (or the status of permanent resident) after a certain period. This will lead to economic development in Kashmir. Women of Kashmir would not be discriminated and they could marry with non-residents as well. The way forward depends on the extent of compromise of the locals on the concept of Kashmiriyat. As the decision to revoke Article 35-A was not taken by the legislative assembly of the Kashmir and the decision was imposed from outside, a reaction is existing on the streets of Kashmir. Given the blood-soaked history of Kashmir, this decision may fan trouble in Kashmir more than before. The way forward could have been to convince the population of Kashmir first and prompt them to purge their constitution of the provisions of the permanent resident first. By bypassing this procedure, the way to hell is paved with good intentions. The only way forward is to go through proper channel of letting the Kashmiris get convinced on this point and make necessary legislation, instead of enforcing upon them a decision from outside.

Dr Tehmina Aslam Ranjha is an Assistant Professor at School of Integrated Social Sciences at University of Lahore and Research Fellow at UoL Center for Security, Strategy and Policy Research. Currently, she is SDPI’s grantee for a mega project on Countering Violent Extremism. She appears on BBC Urdu as an expert on National Security and Counter-Terrorism.

Asad Aslam Ranjha is a lecturer at Faculty of Law, University of Lahore. He tweets at @AA_Ranjha1