What is it?
Article 35A is a provision incorporated in the Constitution giving
the Jammu and Kashmir Legislature a carte blanche to decide who all are
‘permanent residents’ of the State and confer on them special rights and
privileges in public sector jobs, acquisition of property in the State,
scholarships and other public aid and welfare. The provision mandates that no
act of the legislature coming under it can be challenged for violating the
Constitution or any other law of the land.
How did it come about?
Article 35A was incorporated into the
Constitution in 1954 by an order of the then President Rajendra Prasad on the
advice of the Jawaharlal Nehru Cabinet. The controversial Constitution
(Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi
Agreement entered into between Nehru and the then Prime Minister of Jammu and
Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State
subjects’ of Jammu and Kashmir.
The Presidential Order was issued under Article
370 (1) (d) of the Constitution. This provision allows the President to make
certain “exceptions and modifications” to the Constitution for the benefit of
‘State subjects’ of Jammu and Kashmir.
So Article 35A was added to the Constitution as
a testimony of the special consideration the Indian government accorded to the
‘permanent residents’ of Jammu and Kashmir.
According to the Jammu-Kashmir constitution, a
Permanent Resident is defined as a person who was a state subject on May 14,
1954, or who has been residing in the state for a period of 10 years, and has
“lawfully acquired immovable property in the state”.
Only the Jammu-Kashmir assembly can change the
definition of PR through a law ratified by a two-thirds majority.
Why does it matter?
The parliamentary route of lawmaking was
bypassed when the President incorporated Article 35A into the Constitution.
Article 368 (i) of the Constitution empowers only Parliament to amend the
Constitution. So did the President act outside his jurisdiction? Is Article 35A
void because the Nehru government did not place it before Parliament for
discussion? A five-judge Bench of the Supreme Court in its March 1961 judgment
in Puranlal Lakhanpal vs. The President of India discusses the President’s powers
under Article 370 to ‘modify’ the Constitution. Though the court observes that
the President may modify an existing provision in the Constitution under
Article 370, the judgment is silent as to whether the President can, without
the Parliament’s knowledge, introduce a new Article. This question remains
open.
A writ petition filed by NGO We the Citizens
challenges the validity of both Article 35A and Article 370. It argues that
four representatives from Kashmir were part of the Constituent Assembly involved
in the drafting of the Constitution and the State of Jammu and Kashmir was
never accorded any special status in the Constitution. Article 370 was only a
‘temporary provision’ to help bring normality in Jammu and Kashmir and
strengthen democracy in that State, it contends. The Constitution-makers did
not intend Article 370 to be a tool to bring permanent amendments, like Article
35A, in the Constitution.
The petition said Article 35 A is against the
“very spirit of oneness of India” as it creates a “class within a class of
Indian citizens”. Restricting citizens from other States from getting
employment or buying property within Jammu and Kashmir is a violation of
fundamental rights under Articles 14, 19 and 21 of the Constitution.
A second petition filed by Jammu and Kashmir
native Charu Wali Khanna has challenged Article 35A for protecting certain
provisions of the Jammu and Kashmir Constitution, which restrict the basic
right to property if a native woman marries a man not holding a permanent
resident certificate. “Her children are denied a permanent resident
certificate, thereby considering them illegitimate,” the petition said.
Why does it matter?
Attorney-General K.K. Venugopal has called for
a debate in the Supreme Court on the sensitive subject.
Recently, a Supreme Court Bench, led by Justice
Dipak Misra, tagged the Khanna petition with the We the Citizens case, which
has been referred to a three-judge Bench. The court has indicated that the
validity of Articles 35A and 370 may ultimately be decided by a Constitution
Bench.
Counter View
The view from the Right is that by striking
down Article 35A, it would allow people from outside Jammu-Kashmir to settle in
the state and acquire land and property, and the right to vote, thus altering
the demography of the Muslim-majority state.
The state’s two main political parties, PDP and
NC, contend that there would be no J&K left if this provision is tampered
with, and have vowed to fight the battle together.
Former Chief Minister Mehbooba Mufti had warned
that if Article 35A is removed, there won’t be anyone left to carry the
Tricolour in Kashmir; Omar Abdullah has called it the death knell for pro-India
politics in the Valley.
ISSUES BEING DEBATED
Article 35A, first, the Constitutionality of insertion of Article 35A,
and second the conception of equality among the Indian citizen.
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