J&K – The issues around the state

[op-ed snap] Should Article 35A be scrapped?op-ed snap


Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions & basic structure

From UPSC perspective, the following things are important:

Prelims level: Article 35A

Mains level: Issues related to special status given to J&K under the Constitution


The debate over Article 35A

  1. Article 35A of the Constitution is now being vigorously contested with its constitutional validity being challenged before the Supreme Court
  2. Article 35A is often missed out as it does not find a mention in the regular sequential text of the Constitution and is reflected only in an Appendix of the Constitution

Origins of Article 35A

  1. Article 35A was born through a Presidential Order, the Constitution (Application to Jammu and Kashmir) Order of 1954
  2.  Therefore, it was added to the Constitution without undergoing the procedure for constitutional amendments as laid down in Article 368
  3. The Presidential Order was issued in exercise of the power conferred under Article 370 (1) (d) of the Constitution
  4. Whether such power also extends to inserting a new Article in the Constitution is contentious

What powers does Article 35A give?

  1. Article 35A declares that any law enacted by the J&K State Legislature on the issues of permanent residence, or special privileges and rights, or imposition of restrictions, or employment, acquisition of immovable property and settlement in the State, or aid from the State government shall not be void on the ground that it is inconsistent with any rights conferred on other citizens of India
  2. This means that such laws granting special rights to permanent residents would not be deemed a violation of the fundamental rights of other citizens

What does this lead to?

  1. Article 35A treats non-permanent residents of J&K as ‘second-class’ citizens
  2. Such persons are not eligible for employment under the State government and are also debarred from contesting elections
  3. Meritorious students are denied scholarships and they cannot even seek redress in any court of law
  4. The major sufferers are women who marry outside J&K. Though they retain their Permanent Resident Certificate, their children cannot be permanent residents which restricts their basic right of inheritance
  5. The refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution

What should be done?

  1. It is necessary to give confidence to the residents of J&K that any alteration in status quo will not take away their rights but will boost J&K’s prosperity as it will open doors for more investment, resulting in new opportunities 
  2. Article 35A, which was incorporated about six decades ago, now requires a relook, especially given that J&K is now a well-established democratic State

Way Forward

  1. Former Prime Minister Atal Bihari Vajpayee firmly believed that the issues relating to J&K could be resolved following the principles of insaniyat (humanity), jamhooriyat (democracy) and Kashmiriyat (Kashmiri values)
  2. Hopefully, this issue will be resolved using the same principles
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