Mains Paper 2: Polity | Issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.
From UPSC perspective, the following things are important:
Prelims level: Article 35A
Mains level: Governance challenges in J&K
- The Supreme Court has said that it will be taking an “in-chamber” decision on the listing of petitions challenging the constitutional validity of Article 35-A, which provides special rights and privileges to permanent residents of J&K.
When dialogues fail
- In August last year, the court indicated that it would consider the question of whether Article 35A was violative of the Basic Structure of the Constitution.
- However, at that time, the Centre and J&K government had sought an adjournment on the ground that an interlocutor was carrying on dialogues with the State’s stakeholders.
- The special status was bestowed on J&K by incorporating Article 35A in the Constitution.
- Article 35A was incorporated by an order of President Rajendra Prasad in 1954 on the advice of the Nehru Cabinet.
- Parliament was not consulted when the President incorporated Article 35A into the Constitution through a Presidential Order issued under Article 370.
- Article 368 (i) of the Constitution mandates that only the Parliament can amend the Constitution by introducing a new article.
- Article 35A gives the J&K State Legislature a carte blanche to decide the ‘permanent residents’ of the State and grant them special rights and privileges in State public sector jobs, acquisition of property within the State, scholarships and other public aid and welfare programmes.
- The provision mandates that no act of the State legislature coming under the ambit of Article 35A can be challenged for violating the Indian Constitution or any other law of the land.
What’s so problematic with it?
- It is argued that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of J&K was never accorded any special status in the Constitution.
- Article 370 was only a ‘temporary provision’ to help bring normalcy in Jammu and Kashmir and strengthen democracy in that State.
- 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 35A was against the “very spirit of oneness of India” as it created a “class within a class of Indian citizens”.
- It said 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 Indian Constitution.