Mentor’s Comment:

The question is very much in trending now a day and is much in debate. The approach of this question is simple, however, the question demands criticism hence, the one need to criticize whatever the points is being mentioned.

First and foremost is the introduction. It should mention about the article 35A, the way it was included, the motive of incorporating in constitution then.

Further, mention the points supporting its abrogation. Bring example to support your points. Here you can talk about the discrimination done to women who marries the person outside of the state. How it prevents in acquiring land ownership even in matters of setting industries and corporations.

Further mention the points in support of keeping intact this provision of constitution.

A balanced conclusion is must. Conclusion is writing like a third person and hence and not involved in any side taking biased decision.

Model Answer:

Introduction:

• Article35A of Indian Constitution provides special powers to the state of Jammu and Kashmir legislature in respect of granting citizenship rights to any Indian or a group of Indians. It empowers the state legislature to define the classes of persons who are, or shall be permanent resident(s); gives special rights and privileges or imposes restrictions in matters or availing state facilities.
• The provision of this article has been in controversy recently because of its discriminatory and biased nature and hence many experts demand it to be amended or abrogated.

The following argument supports its abrogation:

• Article 35A was added to the Constitution by a Presidential order and hence has not been followed the procedure under Art 368. It ultra vires the basic structure and violates the Constitutional procedures established by law as Article 370 (special privileges to J&K) does not anywhere confer on the President legislative or executive powers so vast that he can amend the Constitution or alone perform the function of Parliament.
• It facilitates the violation of the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property, if the woman marries a man not holding Permanent Resident Certificate (PRC).
• The industrial sector & whole private sector suffers due to the property ownership restrictions. Good doctors don’t come to the state for the same reason.
• 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.
• 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.
• 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). And even after six decades of service in the state, their children are safai-karmacharis and they have been denied the right to quit scavenging and choose any other profession.
• In nut and shell we can say that the provisions of Article 35A violates Right to equality under Article 14, 15, 16, 17 and 18; right to reside anywhere in India Article 19; right to live with dignity Article 21; Right to vote Article 326 and many of the rights conferred under Directive Principles of State Policies particularly related to women and children.

However, many expert calls this move raised with ‘communal minded majoritarian’ intentions and support the existing of Article 35A on the following grounds:

• It protects demographic status of the state in its prescribed constitutional form by not allowing any outsiders to own any property.
• The Article does not only recognizes the special protection granted to the state of J&K in terms of constitutional, legislative, executive orders but also clarifies and validates their existing provisions and hence this Article, on its own, does not give anything new to the State.
• The rebate given to the state of J&K in instrument of accession and subsequently added to the constitution of India in the form of Article 370. This Article 35A is a clarificatory provision draws its rights from Article 370 and strengthens the provision of Article 370 without bringing anything new in demand.

Conclusion:

• However, the recent debate fuels the already ongoing unrest in the valley. Any temptation will further lead to violent unrest and bloodshed in the region. The separatist will get opportunity to divide the opinion of the masses causing uncontrolled situation if anything done on this sensitive issue.
• The government however needs to deal with promptness and utmost vigour to balance the situation by dialogues, campaigns and debates by involving leaders, stakeholders & state citizens and convincing them about the post benefits of bringing changes. The debate over the larger interest is the need of the hour which also includes the provisions of Article 370.
• If Jammu and Kashmir is the integral part of India, it should not posses discriminatory provisions with other residents of the country and should adhere the constitutional provisions as a Union of India and not for the small state. The time demands the dynamism in law to do away with the flaws and the citizens of J&K should be the active part of it without having any vested interests.