Empowering the Region: The Jammu Viewpoint

Written By: Sant Kumar Sharma

The decision of 5 August 2019, to abrogate Article 35-A and revoke the provisions of Article 370 have proven to be really empowering for the Jammu region. This happened first and foremost because Article 35-A discriminated against a certain group of people and with its abrogation, the inequity inherent in the said Article was done away with. With the revocation of special status, the Indian Constitution came into force, replacing the Constitution of Jammu and Kashmir, 1956. The rights and privileges available to all Indian citizens, thus became applicable also to the people of the Union Territory of Jammu and Kashmir.

Of the people who suffered from the discriminatory aspects of Article 35A, about 99 per cent lived in the Jammu Division of the erstwhile state. These groups of people were the West Pakistan Refugees (WPRs), Valmikis, Gorkhas and the women of the state who married outside J&K. Article 35A prohibited the above groups of people from becoming domiciles of the state and consequently, they were denied all the benefits that were available to the rest of the state subjects. In addition, Panchayati Raj Institutions (PRIs) and Urban Local Bodies (ULBs), though constituted, were powerless. Ironically, the Panchayati Raj Act, 1989, which had been enacted by the State of J&K, was the instrument used to disempower panchayats.[1] With the state becoming a Union Territory, the provisions of the Indian Constitution became applicable to the newly constituted Union Territory and PRIs and ULBs now became empowered instruments of grassroots democracy, in line with the rest of the country.

Article 35A

Article 35 A was added to the Constitution of India by a Presidential Order of 14 May 1954.[2] This amendment to the Indian Constitution was carried out without the approval of Parliament and without following procedures mentioned in Article 368. Unlike other amendments, it appears in the Constitution as an appendix and was not listed in the list of amendments either. Article 35A empowered the state of J&K to define who could be deemed a permanent resident of the state, and it further stated that no such law as enacted by the government of J&K shall be void on the grounds that it is inconsistent with or takes away or abridges any rights conferred on other citizens of India. Consequently, through Part III (6) of the Constitution of Jammu and Kashmir, 1956,[3] the permanent resident of the state was defined as under:

Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954, (a) he was a state subject of class I or of class II, or (b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to this date” and (II) any person who, before the fourteenth day of May, 1954 was a State Subject of class I or of class II and who, having migrated after the first day of March, 1947, to the territory – now included in Pakistan, returns to state under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State”

Section 8 of the Constitution of Jammu and Kashmir, 1956 gave the State Legislature the right to define Permanent Residents and Section 9 empowered the State Legislature to alter the definition of Permanent Residents. And this was used to discriminate against certain classes of people.[4]

West Pakistan Refugees

The West Pakistan Refugees were those hapless Hindus, Sikhs, and Christians, who had come to J&K, after escaping from Sialkot and neighbouring areas of what became Pakistan in 1947. As stated earlier, Part III (6) of the Constitution of Jammu and Kashmir defined a state citizen as a person who on the fourteenth day of May, 1954, was a state subject and has been ordinarily resident in the State for not less than ten years prior to this date. This clause was deliberately included to leave out those ill-fated people, who had to leave their homes due to the riots that had broken out post the partition of the country. By arbitrarily imposing a cut off date of entry to the state as 14 May 1944, all the refugees who streamed into the state post partition, were denied domicile status. It bears mention here, that all such refugees who came to Punjab and other states of India, were made domiciles of the respective states that they had settled in. Thus, a gross injustice was done to those people who were forced out of their homes due to the post partition riots and who moved to the state of J&K.

Post the partitioning of the country, 5,764 families had been registered in 1947 in the state of J&K. They had the right to vote in the national elections as citizens of India, but they could not vote in the state elections as they were not granted state domicile status. The same discrimination carried over to their progeny. They were thus deprived of all the privileges that accrued to state domicile subjects which resulted in discrimination in education, employment, land ownership and in many other areas. With the abrogation of special status, all these people, have now become domiciles of J&K overnight. As a large number of such people belonged to the weaker sections of society, with at least 75% of them being Scheduled Castes (SCs), they now also have access to all central government schemes which provides for their welfare.

Valmikis

The story of the Valmikis also points to the great degree of discrimination and humiliation heaped upon this group of people. In 1957, following a strike by the sanitation workers in the state of J&K, more than 277 families of Valmikis were brought in from Gurdaspur and Amritsar districts of neighbouring Punjab, to work in the state. They were brought in by the government of that time, with a promise that they would be made state domiciles. However, they were eligible only for jobs of safai karamcharis and were not given Permanently Resident (PR), despite being in J&K for 62 years. While the children of these safai karamcharis could get admission in government run colleges and professional institutes, they could only apply for jobs as sweepers. Now, such discriminatory procedures have been done away with. The Valmikis can now apply for state domicile certificates and the same will be given to all the applicants. A 71 year old lady of the community, Ms Deepoo Devi became the first recipient of the domicile certificate in July 2020. The J&K administration is speeding up the process to grant such certificates to all eligible persons, thus meeting the long pending demand of the people.[5] With this, the Valmikis are now empowered.

Gorkhas

The valiant Gorkhas had been living in J&K for generations, fighting as soldiers in the state forces organised by successive Dogra Maharajas. Despite that, they were denied any rights in J&K but all that stands changed now. Many of them have got domicile certificate made and for others these are in the pipeline.

Gender Equality

Article 35-A was interpreted and implemented in a blatantly gender discriminatory manner in J&K, clearly against the spirit embodied in the Preamble of the Indian Constitution. It also militated against various gender equality clauses of this supreme law of the land. Once Permanent Resident (PR) women got married outside J&K, their rights were severely curtailed. All this has now changed and women across the Union Territory will have the same rights as their male counterparts. This is truly liberating and a major step towards gender parity in J&K.

Grassroots Democracy

The PRIs stood disempowered as they were denied funds for carrying out development activities. This is evident from the fact that for the period 2011 to 2016, the panchayats received just Rs 1 lakh as a one time grant. This translated into Rs 20,000 per panchayat per annum. In contrast, in October 2020, each panchayat received a sum of Rs 10 lakh. The Panchayats and other institutions will now be receiving yearly grants to carry out development activities. A new phase of B2V (Back To Village) programme was also started on October 2, the birthday of Mahatma Gandhi.

For the very first time, elections have been held to the Block Development Councils (BDCs), and this has thrown up a new crop of leaders. The fact that the MLAs of the erstwhile state had little respect for the Panchayats is indicated by the fact that while the Legislative Assembly had a tenure of six years, the panchayats had a tenure of only five years. The panchayats were, in fact, treated merely as “necessary evils” to get funds from the Centre under rural development head. The same can be said for the ULBs. Decentralisation of political power in a tiered fashion, as envisaged in the Indian Constitution, was something that was missing altogether. Now, grassroots democracy has started taking wings.

Genesis of Disempowerment and Fragmentation of Kashmir Politics

If we want to discuss empowerment of the Jammu region, we should perhaps go to the root cause of disempowerment of the region. This disempowerment can be traced back to Sheikh Mohammad Abdullah getting formal command of J&K on 5 March 1948, when he was made “Interim Administrator” by Maharaja Hari Singh. After that day, the Sheikh did everything possible to undermine the Maharaja and end the role of the monarch in the new set-up. Instead of seeking accommodation and power-sharing, Sheikh virtually became despotic because of the unstinted support of Jawaharlal Nehru. Since then, the top executive post has always been held by a person from the Kashmir Division, except for a brief period from 2 November 2005 to 7 July 2008, when Ghulam Nabi Azad, who hails from Doda district of the Jammu region, was the Chief Minister of J&K. This indicates the hegemony exercised by Kashmir over the rest of the state.

On 2 November 2002, Mufti Mohammad Sayeed of the People’s Democratic Party (PDP) with only 16/87 MLAs became the CM of the state. He headed a coalition government in which the Congress had 20 MLAs. Besides, several independent legislators also supported this government. Out of these 20, a majority, 15, belonged to the Jammu region. With many legislators hailing from Jammu, it became imperative to give them some weightage in the power structures. Some of them were made ministers, while some others were adjusted in government-controlled corporations. This happened mainly because of the fragmentation of the Kashmir polity.  The PDP ended the unchallenged hegemony of the National Conference (NC) in 2002. After that, the results of the assembly elections in 2008 and 2014 also led to coalition governments.

In 2014, when the assembly elections were held, the BJP got 25/37 seats in the Jammu region. A rebel BJP candidate, Pawan Gupta from Udhampur, also pledged support to it, besides two MLAs of the Sajad Lone-led People’s Conference (PC). Overall, it thus had 28 MLAs on its side, Incidentally the same number of legislators, 28, which the PDP had. Despite that, somehow an unequal power-sharing arrangement was finalised by the PDP and the BJP.

Intriguing as it seems now, rotational CM-ship, which had a precedent in the 2002 coming together of the PDP and the Congress, was not worked out between the new coalition partners. Under the deal they finalised, Mufti was to remain CM for all six years of this government. That was not to be as Mufti’s death, due to illness in January 2016, drove a wedge deeper between the two parties. Mehbooba Mufti succeeded her father some months later and the coalition partners kept drifting apart. In June 2018, the coalition government of Mehbooba came to an end when the BJP withdrew support.

Drifting Apart and Unfair Delimitation of Constituencies

Since March 1846 Amritsar Treaty, Jammu and Kashmir have remained together as a political unit. The two regions however lack organic unity as they are geographically, culturally and socially poles apart. From March 1846 to August 1947, the power remained with the Hindu Dogra rulers from Jammu. In fact, Ladakh was conquered by the Dogra king Gulab Singh much earlier than Kashmir became a part of his empire. After August 1947, Kashmir fast emerged in a pivotal position and became the power centre in the state which had three distinct geographical regions; Jammu, Kashmir and Ladakh. Kashmir became so powerful that it marginalised the other two regions in all spheres of life, often by use of less than fair means.

The most fundamental reason for the political hegemony that Kashmir had over Jammu and Ladakh regions was the unfair delimitation of constituencies. Both Legislative Assembly constituencies, as also the Lok Sabha segments, were carved out in a manner to undermine both Jammu and Ladakh. The dice was loaded in favour of Kashmir leading to its victory in the political domain. In the Legislative Assembly of the state of Jammu and Kashmir, out of 87 segments, 46 were located in Kashmir, 37 in Jammu and 4 in Ladakh. The constituencies were carved out on the basis of the Representation of People’s Act, 1951, both for the Legislative Assembly and for the Lok Sabha. Major yardsticks used were (i) Population (ii) Geographical Compactness (iii) Nature of Terrain (iv) Facilities of Communication and such like considerations.

An analysis based on the above factors indicates that the delimitation was not correctly carried out. Let us examine data based on population and area in respect of Jammu and Kashmir divisions. In terms of area, Jammu with a spread of 26,292 sq. km is 1.648 times larger than Kashmir, which has an area of 15, 948 sq. km. In terms of the electorate, there seems to be a balance. During 2008 assembly elections, there were 6,345,380 voters in J&K (excluding Ladakh region). Of these, 3,084,717 were in Jammu and 3,260,663 in Kashmir. Thus, population wise, the electorate was nearly equal, with Kashmir having 51.38 percent and Jammu having 48.62 percent of the electorate.

Perhaps we need to understand the concepts of gerrymandering (American) and rotten boroughs (British) more thoroughly in the context of J&K to get an insight into how Kashmir’s hegemony was created and how it has continued for several decades. Gandhinagar of Jammu district having 1,52,100 voters was the largest assembly segment in 2008. In Kashmir, the largest assembly segment was Batmaloo of Srinagar district with just 1,02,759 voters, a whopping 49,341 voters lesser than Gandhinagar. During 2008 elections, the smallest assembly segment in the Jammu region was Bani in Kathua district having 37,197 voters. In the Kashmir region, the smallest segment was Gurez having only 15,330 voters. The comparative data of most assembly elections held in J&K of 1983, 1987, 1996, 2002, 2008 and of 2014, is readily available. The data of even earlier elections is available and the results are almost always identical.

It stands to reason then, that both the Jammu and Kashmir regions should have had an equal number of seats in the legislative assembly. By giving Kashmir 46 assembly segments and Jammu only 37, great injustice was done to the latter in terms of political representation. The allotment was totally disproportionate, grossly unfair and deliberately skewed in favour of Kashmir. This needs to be corrected now.   

 

   

 

 

 

Lok Sabha Segments

The statistical comparisons of Lok Sabha segments of the Jammu region with those located in Kashmir, also yield similar results as seen in the segments in case of Legislative Assembly constituencies. It seems different yardsticks were used for carving out the Lok Sabha segments in the two regions, much as if the two regions were not part of the same state! Incidentally, the Lok Sabha segments in J&K were not delimited by the Justice Kuldeep Singh Commission for delimitation which was constituted in 2002. As analysed above for the assembly segments, it follows then that both Kashmir and Jammy regions of the state should have had equal representation in the Lok Sabha segments. But Kashmir was given three Lok Sabha seats and Jammu only two. This was discriminatory.

Conclusion

 The above few paragraphs clearly demonstrate that the voters of the Jammu region have been treated unequally when compared to voters in the Kashmir region. Such treatment is contrary to the mandate of Articles 81 and 82 of the Constitution of India and has led to the voters in the Jammu region being severely under-represented. It is apparent that artificial disparities were created deliberately to give political hegemony to the Kashmir region. All this is founded on no intelligible criteria save bias against the Jammu region. In addition, the fact that no delimitation of the Lok Sabha segments of J&K was done whenever this happened all over India indicates that this was meant to perpetuate the disparities.

A fresh delimitation of the constituencies needs to be done in an equal and equitable manner to address the above disparities. Towards this end, in February 2020, the Centre has begun the process of delimitation of assembly segments in J&K, and the process once completed is expected to pave the way for Assembly Elections in the Union Territory. [6] 

As of now, the Union Law Ministry has constituted the Delimitation Commission which is headed by former Supreme Court judge, Justice Ranjana Prakash Desai. The Commission is mandated to redraw Lok Sabha and assembly constituencies of the Union territory of Jammu and Kashmir. All five Lok Sabha MPs from the Union Territory have been nominated as Associate Members. Consequently, the Delimitation Commission has sought information from all the 20 district commissioners in the Union Territory, [7] which indicates that the process is underway.

It will be in the fitness of things that Jammu gets its legitimate share in power structures at all levels. Be it panchayats and urban local bodies (ULBs), or the Legislative Assembly, or representation in the Lok Sabha, things seem destined to change, and change for the better.

(Sant Kumar Sharma is a Senior Journalist based in Jammu. He has written books on Article 370, Delimitation and on Indus Waters Treaty.)


[2] The Presidential Order covered a host of subjects. Article 35A was introduced in this order under sub section (j). The text reads as under:

(j) After article 35, the following new article shall be added, namely:- “35A. Saving of laws with respect to permanent residents and their rights.- Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,- (a)  defining  the classes of persons who are, or shall be  permanent residents of the State of Jammu and Kashmir;  or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects- (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv)  right  to scholarships and such other forms of aid as the  State Government  may  provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part”.

[3] Details of the text of the Constitution are available at http://jklaw.nic.in/the_constitution_of_jammu_and_kashmir_1956.pdf

[4] Ibid.

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Published by Sant Kumar Sharma

Sant Kumar Sharma is a Senior Journalist based in Jammu. He has written books on Article 370, Delimitation and on Indus Waters Treaty.

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