Article 35A of Indian Constitution – Should it be Scrapped?

Article 35A of Indian Constitution – which is connected with Jammu and Kasmir – is in news, over its constitutional validity.

While Article 370 provides special status to Jammu and Kashmir, Article 35A gives powers to the state legislature to define permanent residents of the state and their privileges.

What is Article 35A all about?

Article 35A which does not allow people from outside the state of Jammu & Kashmir to work, settle or own property in the state. The text of Article 35A is given below.

“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.”

Why is Article 35A in news now?

• The issue came up when a Kashmiri woman, Charu Wali Khan filed a petition to change the constitutional provision as she wanted succession rights in the state though she is settled outside the state.
• This has led to a major controversy in the state.
• The state government filed a counter petition, but the central government did not do.
• The Central Government has submitted before the Supreme Court that it is ready to discuss on scrapping of Article 35A which does not allow people from outside the state of Jammu & Kashmir to work, settle or own property in the state.

Article 35A and Article 370 – Delicate Issues

• The NDA Government wants to have a larger debate over the Article 35A challenging the constitutional validity of the clause.
• An NGO, ‘We the Citizens’ have filed a writ petition to strike down Article 35A.
• The ruling party believes that the special status, certain rights and privileges are enjoyed only by the residents of the state which has given rise to alienation and separatist identity to the people of Jammu and Kashmir.
• The provision does not allow people from outside the state of Jammu & Kashmir to work, settle or own property in the state. Scholarships, forms of aid etc are also not allowed to non-residents of the state. (Reference: The Hindu)

What is Judiciary’s take on Article 35A?

• Supreme Court was ready to have a discussion on scrapping Article 35A while the state government opposed such a move.
• The matter has been referred to three judge bench and has been given a six-week deadline to settle the dispute.
• The state BJP leaders are vocal about repealing the Article 35A. As the matter is sub judice, the court’s decision should be binding on all. This stand by the BJP has led to rifts between the BJP and PDP.
• The Supreme Court hinted at referring petitions against Articles 370 and 35A of the Constitution — which give special provisions to Jammu and Kashmir — to a Constitution bench.
• The top court said all petitions that demand scrapping of the articles should be heard together. (Reference: Indian Express)

Arguments against scrapping Article 35A

• Scrapping the Article 35A is seen as an assault on the special status of the Jammu and Kashmir by the state government.
• Article 35A cannot be challenged on the ground that they affect the fundamental rights of the other Indian Citizens.
• The rights of the state legislature are not unlimited and can be given only in the case of – Employment, Property, Settlement and Scholarship.
• Kashmiris are apprehensive that such a move would be dominated by the Hindu nationalist groups.
• Former chief minister Omar Abdullah also stated that this would create a bigger agitation as was witnessed in 2008 over the transfer of land to the Amarnath Shrine Board.

Arguments in favour of scrapping Article 35A

• Article 35A was not a part of the original Constitution but was added later by a presidential order of 1954.
• Article 370 is another matter of discussion as it is not permanent but a temporary clause.
• The definition can be altered by the state government by passing a law with two third majority.

Amarnath Shrine Board: Protests in 2008

• To set up temporary shelters and facilities for Hindu pilgrims, on May 26^th 2008, the Government of India and State government of Jammu and Kashmir signed an agreement to transfer 99 acres land to the Shri Amarnath Shrine Board.
• This caused demonstrations and protest in the Kashmir valley which was the largest in the history of Kashmir with over 500,000 protesters at a single rally.
• Environmentalists argued that the transfer of forests land, would hamper the ecological balance as the construction of roads and dams was speculated.
• The demands of the protesters were accepted by the state government and the transfer of land decision was revoked in July 2008.
• Hindu groups counter protested to this revocation of law.
• The convener of the Amarnath Yatra Sangharsh Samiti reacted and said that the state government was responsible to flaring these religious sentiments as it had allowed constructing Jama Masjid at Baltal but did not allow temporary structures for Hindu pilgrims.
• Despite the protest, the state government did not annul the revocation of the decision.
• The frustration amongst the Hindus and Muslims was an attack on the secularism of the state and a regional divide erupted between the religious groups leading to loss of many lives and property.
• An agreement was signed between the group leading the agitation and Governor of the state appointed panel by making temporary use of 40 hectares of land during the yatra period.
• Pakistan taking the opportunity of the situation passed a resolution expressing concerns over the attacks on Muslims and their property by the Hindus. Indian Foreign Ministry reacted sharply to this by saying that it was interference in the internal affairs of the country.

Anomalies of Article 35A and 370

• Article 370 states that all emigrants from Jammu and Kashmir, including those who migrated to Pakistan are considered as state subjects.
• This gave rise to many doubts whether a Pakistani national can settle in the state of Kashmir and buy property which was denied to many Indian citizens.
• The provision is also gender discriminatory as the rules discriminate against Kashmir women by restricting their choice of partners in marriage. If the husband does not hold a permanent resident certificate, the subsequent rights are denied to the children. Hence a female marrying outside the state of Jammu and Kashmir is denied of property rights in that manner. (Reference: First Post)
• Under Article 6 of the Jammu and Kashmir Constitution, Indians are not conferred state subjects which prevent them from voting, holding jobs, getting admissions to colleges etc.
• This amounts to the violation of Article 14, 15, 16, 19 of the Constitution of India.
• The Bharatiya Jana Sangh Founder, Shyam Prasad Mukherjee termed Article 370 as the balkanization of India. He protested vigorously against the autonomy of the state by saying “Ek desh mein do Vidhan, Do Pradhan and Do Nishan nahi challenge”
• It is not surprising that the ruling party is following the ideals of its founder now.

Jammu and Kashmir – Not only a Political Issue but also a Security Issue

• Jammu and Kashmir is not only a political issue but also a security issue, given the fact that Pakistan always interferes in the internal matters of India and the bilateral relations between China and India has been deteriorating. So ultimately who benefits from this controversy is the question.
• Pakistan has agreed to declare Pok as its fifth province and has decided to bleed India through thousand cuts. It has been launching terrorist attacks in India since long.
• China and Pakistan have been friends since long. China was against declaring Masood Azhar as a global terrorist, denied NSG entry to India and is also building CPEC passing through India’s territory. This is hence a sovereignty issue to India.

Not an easy decision

• There should be deliberation on the validity of Article 370 too. (Reference IDSA)
• Article 35A is only a clarificatory provision and itself does not confer any special power.
• The order has also been used to override the provisions of the State Constitution.
• If the article 35A is scrapped, all the 41 subsequent Presidential orders may then become susceptible to legal challenges.
• The residents of J&K were deemed as Indian citizens through these Presidential Orders.
• Presidential Orders were used to extend 94 out of 97 entries in the Union List.
• Presidential Orders were used to extend 260 out of 395 Articles of the Indian Constitution to J&K and even and to impose central rule in J&K. (Reference: Indian Express)

Read: Ladakh statehood

Article by Ipsita Mishra.