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Article 35-A proves to be a disappointment more than a protector of rights to Valmikis, Gorkhas, and Women of Jammu and Kashmir

According to Article 35-A, the J&K state legislature has the right to define the term “permanent residents” and also to alter its definition

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Permanent Residents
Indian constitution’s Article 35-A empowers the state legislature of J&K to provide a definition of ‘permanent residents’ of the state. Wikimedia Commons
  • Article 35-A exists in the Constitution not as a part of the amendments’ list but as an appendix
  • It allows J&K state legislature to define the term “permanent residents” and also to alter its definition
  • Article 35-A was enacted to safeguard the rights of J&K’s permanent residents but Valmikis, Gorkhas, and women are being discriminated against

Jammu and Kashmir, August 12, 2017: Indian constitution’s Article 35-A empowers the state legislature of Jammu and Kashmir to provide a definition of the state’s ‘permanent residents’ and provide them with special privileges and rights. It was incorporated in the Constitution by the then President of India on 14 May 1954 under an order known as the Constitution (Application to Jammu and Kashmir) Order 1954.

Article 368 underlines that no Constitutional amendments can take place in the absence of a parliamentary procedure. Article 35-A was not presented before the Parliament. It exists as an appendix instead of the amendments’ list in the Constitution. Article 35-A instead of providing special rights and privileges and/or protecting permanent residents of J&K, it has discriminated against some.

 Women have suffered the worst are the women amongst the others who are discriminated against.

According to Article 35-A, the J&K state legislature can define “permanent residents” and also change its definition.

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Till 2002, the female residents of J&K were being issued Permanent Resident Certificates (PRCs) with the tag ‘valid till marriage’ by the Revenue Department. In a case labeled Jammu and Kashmir Versus Dr. Sushila Sawhney and others, as per the majority opinion, the full bench of Jammu and Kashmir High Court it was decided that a permanent resident’s daughter getting married to a nonpermanent resident or an outsider will not let go of the prestige of Jammu and Kashmir’s permanent residence.

In spite of the clear judgment by the High Court and its legal position, a committee was made by the Revenue Department of the state in 2016 to solve an already settled matter. The government at the center was not allowed to intervene, due to Article 35-A.

Marriage with an outsider: If a woman from Jammu-Kashmir marries someone who is an outsider, she will not be permitted to reside in the state in any circumstance. If a man belonging to another state gets married to a woman in J&K, he is not qualified to receive a PRC, including any of the benefits associated with it.

This conveys he is not eligible to be given a government job, his children are not eligible to enroll in institutes and professional colleges run by the state, and he cannot buy land.
This indicates that in the situation of a woman marrying an outsider, she will be obliged to leave her state and reside somewhere else. Before such women had to let go of the prestige of a permanent resident and even her spouse and offsprings didn’t get PRC. However, this does not happen if the involved resident is male.

Valmiki Families: The number of Valmiki families sent to J&K from Punjab in 1957 for the work of safai karamcharis were 200. All these families were ready to be employed in J&K after it was promised to them that the clause of  ‘permanent resident’ would be in their favor.

After five long decades, each family’s strength has grown and the employee numbers have gone up. Their plight, however, is that they will be regarded as J&K’s ‘permanent residents’ only if they work as safai karamcharis.

The offsprings of these families, who have been graduated, cannot give applications for government jobs. Even the literate youngsters belonging to their families can only work as safai karamcharis. The community that was allocated to safai karamcharis to reside in has not been standardized till now.

J&K’s Gorkhas: They were appointed to all the positions of Maharaja Ranjeet Singh’s army and after that Maharaja Gulab Singh’s. Their families resided in Jammu and Kashmir since 200 years and before, and are around 1 lakh in number. They are not given PRC on unreasonable grounds. The reason is Article 35-A which allows the state government to discriminate among the state’s permanent residents.

Now the question that arises is if Article 35-A was meant to safeguard the rights of Jammu and Kashmir’s permanent residents then why do Valmikis, Gorkhas, and women face discrimination?

If Article 35-A allows J&K’s government to be biased to the state’s permanent residents, then why shouldn’t it be repealed with immediate action? Such points need immediate attention to guard J&K’s permanent residents from further bias.

-prepared by Harsimran Kaur of NewsGram. Twitter Hkaur1025

Next Story

Don’t Break the Hearts of Gorkhas

Here comes a question for sober thought and introspection

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Hearts, Gorkhas, Alert
Yet again, a few days back another TMC activist -- Ms. Tanvi Das stirred the hornet’s nest.

BY SALIL GEWALI

We should always be alert to the thunder of lies and deceit. They often tear the social structure to pieces. There are innumerable people who have become the “victims” of such falsity and propaganda. In the last three years, many leaders in West Bengal (India) have thus been attacking the Gorkha citizens with the brute forces of false narratives, apart from the heartless killing of 15 innocent people during 2017 Gorkhaland peaceful agitation. Without one iota of knowledge of “history”, they branded Gorkhas in India as infiltrators, sometimes as terrorists. In the common parlance of Indian jurisprudence, this amounts to a serious case of defamation and a criminal act of high order. Hearts.

Yet again, a few days back another TMC activist — Ms. Tanvi Das stirred the hornet’s nest. In her TV panel discussion, Ms. Tanvi rudely roared to belittle Gorkhas as “infiltrators” and insisted on deporting them all out of India. She talked down other participants in that talk show. Though she was vehemently criticized, but she appeared outrageously unapologetic. However, very coincidentally, on the same day, two Gorkha soldiers were “martyred” while fighting the “infiltrators” on LOC in Tangdhar, Kashmir. How do we describe these incredibly paradoxical situations? 

Hearts, Gorkhas, Alert
Under the Treaty of Sugauli 1815-16, Nepal Kingdom ceded the major portions of its territories to the British India.

Let’s look at history. Even small kids know that India was ruled by the British for almost two centuries. This imperialist British had also eyed Nepal. But keeping in view the rising military power of the British Raj, then the Nepal Kingdom decided to strike a deal with East India Company. It was a deal to break the ice of hostility between the two neighboring nations. Under the Treaty of Sugauli 1815-16, Nepal Kingdom ceded the major portions of its territories to the British India which include a huge swathe of the mountainous, hilly and plain terrains.

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Thus consequently, areas like Sikkim, Darjeeling, Nainital, Kumaon, and Garhwal had come under the East India Company. 

Hearts, Gorkhas, Alert
In her TV panel discussion, Ms. Tanvi rudely roared to belittle Gorkhas as “infiltrators” and insisted.

Here comes a question for sober thought and introspection. All intellectuals and leaders must first get down to study the core history of Gorkhas before being judgmental. The situation in which Gorkhas are living in India certainly calls for a reasonable amount of compassion and rationality. If the vast range of mountains, beautiful hills, rivers, flora and fauna, and all animals and birds therein can be regarded as Indian then why not two-legged human beings inhabiting these areas? Is it not outrageous? Of course, comparatively a very small portion of land that Gorkhas in India are now demanding as Gorkhaland. Moreover, it is only after the Indian Independence in 1954, Darjeeling was merged into West Bengal (India) for easy administrative purposes, prior to that it was marked out as the “Excluded Area”. Not even 5% Indians are aware of this brief history of Gorkhas. It is a big tragedy. The Central and State Governments should immediately consider incorporating the lessons on the history of brave Gorkhas and their sacrifice in all academic school textbooks. 

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Hearts, Gorkhas, Alert
However, very coincidentally, on the same day, two Gorkha soldiers were “martyred” while fighting

Truly, it is Gorkhas’ valor and their military skills over which India always takes pride in. The record has it that, prior to India Independence, Netaji Subhash Chandra Bose had always fondly cherished Gorkha Armies and held them in high esteem. Needless to say, they were the backbone of Netaji’s Azad Hind Fauz. INA’s patriotic song – “Qadam Qadam Badhaye Ja” was composed by none other than a Gorkha patriot – Captain Ram Sigh Thakur. The life story of a Gorkha soldier, Major Durga Malla of INA, who was sent to gallows in 1944 by the British on sedition charges, is very awe-inspiring. In honor of his sacrifice, the Indian Parliament houses a huge statue of Major Malla. Equally significate is the supreme sacrifice of Subedar Harka Bahadur Rana who fiercely fought with Pakistan to save Kargil immediately after India independence in 1948. There is a huge memorial dedicated to Harka Bahadur Rana and a bridge in Kargil named after him. What more certificate of integrity does one need? Yes, these courageous “Gorkha army regiments” had been the “first choice” to be sent to fight against the Sino-Indian War in 1962, the Indo-Pakistani War in 1971, Battle of Sylhet, Kargil War in 1999. And there hardly a month goes without a couple of valiant Gorkha warriors being martyred while fighting against the enemy.

Hearts, Gorkhas, Alert
Even small kids know that India was ruled by the British for almost two centuries.

Is it not an absolute madness of our certain leaders who greet the Gorkhas with scorn and derision? Very absurdly, here in India, there are leaders who choose to sing a welcome song for the dreaded insurgent groups and terrorists while they criticize and humiliate those who stand up to protect the country. 

One professor from New Delhi has rightly said — “It is a total injustice to the Gorkhas in India. Such apathy of the Indian Nation towards those brave and loyal soldiers who “came with the land” is undesirable. Even UNO or World leaders will be shocked when they know how Gorkhas are being demonized in their own land.” Are Tanvi Das and her types listening? No joke, what will happen to the sovereignty of the NATION if “Tanvi Das and her party” recruit their “invited citizens” from Bangladesh in the army and give them all arms and ammunition to fight the infiltrators? There will be a secret jamboree of rock-n-roll and jubilation along the borders. Hope you have understood. It will be an open invitation to the disaster. 

Hearts, Gorkhas, Alert
This imperialist British had also eyed Nepal.

Alas, should the leaders with ulterior motive be thus allowed to let the common citizens down! So sadly, having lost their power of discretion, they hardly can now differentiate between true friends and sworn enemies. Their narrow party policies have literally bruised the hearts of the patriots, and also damaged the integrity of the nation.

Hearts, Gorkhas, Alert
But keeping in view the rising military power of the British Raj, then the Nepal Kingdom decided to strike a deal.

Frankly speaking, it is so important that the scream of the grievance of the aggrieved Gorkhas now must reach up to the UNO. The world leaders must be made aware of that Gorkhas’ loyalty to the nation has thus far been undervalued, and their identity crisis is merrily overlooked. Is it not that patriotism comes from within the heart that has been well cared for and loved? It seems the wounded Gorkhas now have to turn to the UNO for the healing balm. 

Salil Gewali is a well-known writer and author of ‘Great minds on India’. Twitter: @SGewali