Article 35A debate

Note4Students

Article 35A triggers the discussion of special privileges of Kashmir. Kashmir had been stirred with terrorism and other unrest.  Another political controversy will drag the region into unrest again. It is important to find a solution. This article looks into various aspects of article 35A. In last, few years UPSC has asked a number of Questions on controversial constitutional articles and SC judgements, for example in 2013 UPSC asked a Question on Article 371 A and last year it asked a question on Article 239AA . Thus a question can be expected from this topic in Mains 2017.

Introduction

What is it?

  1. Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature the authority 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
  2. 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.

Implications

  1. Article 370 grants special status to J&K, while Article 35A, added to the Indian Constitution through a presidential order, empowers the J&K legislature to define the state’s “permanent residents” and their special rights and privileges.
  2. 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.
  3. 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.

Recent Developments

  1. The threat of abrogation of Article 35A is leading to unprecedented political developments in the Valley. For instance, it is the first time in recent past that all major political parties in Kashmir, including the ruling People’s Democratic Party and the opposition National Conference, independent MLAs and even the Hurriyat have come together on an issue.
  2. Attorney General KK Venugopal telling Supreme Court, during a hearing on 35A, that the Centre was in favour of a ‘larger debate’ sent alarm bells ringing through the Valley
  3. Recently, a Kashmiri woman called Charu Wali Khan, settled outside the state, challenged the legality of Article 35A of the Indian Constitution that allows J&K to define its “permanent residents”. She claimed in her petition to the Supreme Court that such a law takes her succession rights away and disenfranchises her.
  4. In 2014, NGO approached the Supreme Court challenging Article 35A on the grounds that it was illegally added to the Constitution as it was never floated before Parliament.

ANALYSIS

WHAT’S THE CHALLENGE TO IT?

  1. Article 14 of the Constitution gives a fundamental right to equality before law. But 35A is heavily loaded in favour of males because even after marriage to women from outside, they will not lose the right of being permanent residents
  2. Outsider vs insider: while a woman from outside the state shall became a permanent resident on marrying a male permanent resident of the state, a daughter who is born state subject will lose her permanent resident status on marrying an outsider.
  3. It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste and Scheduled Tribe people who have lived there for generations. The Valmikis who were brought to the state during 1957 were given Permanent Resident Certificates on the condition that they and their future generations could stay in the state only if they continued to be safai-karmacharis (scavengers).
  4. Children of non-state subjects do not get admission to state colleges.
  5. It ruins the status of West Pakistani refugees. Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu and Kashmir, they cannot enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu and Kashmir.
  6. It gives a free hand to the state government and politicians to discriminate between citizens of India, on an unfair basis and give preferential treatment to some by trampling over others, since the non-residents of the state are debarred from buying properties, getting a government job or voting in the local elections.
  7. At this juncture, it may be important to recall a landmark judgment delivered on October 2002, by the Jammu and Kashmir High Court, which held that women married to non-permanent residents, will not lose their rights, though children of such women will not enjoy succession rights.

Why does it matter?

  1. The parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution.
  2. 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.
  3. A writ petition filed by NGO We the Citizens challenges the validity of both Article 35A and Article 370.
  4. 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.
  5. 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.
  6. 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.

Issues Involved

  1. The major political parties of the Kashmir Valley, NC and PDP have remained in support to the preservation and safeguarding of Article 370 and Article 35A.
  2. In defense of Article 35-A, the Jammu and Kashmir state Government in November 2015, prepared a report which read, “though Article 368 has been applied to State of Jammu and Kashmir, that would not curtail power of President under Article 370 to amend any provision of Constitution of India in its application to Jammu and Kashmir”.
  3. The constitutional validity of Article 35A is, therefore, well established as it protects legislation passed by the J&K legislature relating to benefits to Permanent Residents from challenge on the ground of violation of Fundamental Rights, while extending the chapter on Fundamental Rights of the Indian Constitution to J&K. Thus this provision is in the nature of a proviso to the extension of the chapter on Fundamental Rights in the Indian Constitution to J&K. In fact, the Fundamental Rights were extended to J&K through the 1954 Presidential Order.
  4. 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.
  5. Scrapping the Article 35A is seen as an assault on the special status of the Jammu and Kashmir by the state government.
  6. Article 35A cannot be challenged on the ground that they affect the fundamental rights of the other Indian Citizens.
  7. The rights of the state legislature are not unlimited and can be given only in the case of – Employment, Property, Settlement and Scholarship.
  8. 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.
  9. Any alteration to Article 35A may leave the government at the Centre with a hot mess in its hands, damaging the vestiges of goodwill that ordinary Kashmiris may still have towards the Union of India.
  10. Any attempt to undermine, or dilute, these principles, already enshrined in the Constitution and wrenched after many decades of violence and bloodshed, can only serve to perpetuate the current cycle of unrest. In any case, it won’t act as a deterrent to terrorism in the valley.

Conclusion

Kashmir has been on the boil since last July, after Hizbul Mujahideen leader Burhan Wani was killed by the Indian Army. Since then, hundreds of ordinary people have been injured or killed in clashes with the armed forces and regular Internet shutdown has crippled normal life in the state. Taking a hasty step to deal with Article 35A under such dire circumstances, out of purely jingoistic or ideological concerns, may prove to be the last straw in the Centre’s relationship with the state.

Question

Article 35A undermines the unity of our nation. Critically analyse

What is article 35A. what are the issues involved in it??

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