What Is Article 35A And What Is The Controversy Revolving It?

There has been a lot of debates recently revolving around the validity of Article 35A and its correctness. In this article, we will discuss what is the issue revolving Article 35A.

What is article 35A?

Article 35A states, “no existing law in force in the state of J&K and no law hereafter enacted by the legislature of the state, conferring on permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects:

(1) Employment under the State Government;

(2) Acquisition of immovable property in the State;

(3) Settlement in the State; or

(4) 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.”

Basically, Article 35A gives the Jammu and Kashmir Legislature unlimited discretionary power to decide who all are ‘permanent residents’ of the State. It also gives the legislature a power to confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare.

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.

How did it come about?

Basically, article 35(1)(A) of Article 35 of the Indian constitution states that –

“The Parliament of India shall have the power to make laws prescribing residence as a condition for certain employment or appointments in a state or union territory or local authority or any other authority.”

However, Article 35A empowers the Jammu and Kashmir legislature to define these permanent residents of the state.

The Jammu and Kashmir Constitution was adopted on November 17, 1956. But, the special status given by Article 35A was sourced from the 1954 Presidential Order, which gave special rights to the State’s permanent residents.

How it affects the J&K residents?

No one from outside J&K wants to go and work in the J&K because he cannot purchase his own house or get a government job there. Even the refugees after the independence, who migrated to India from Pakistan, are treated as second-class citizens with no proper rights. They cannot even acquire any immovable property in the State, they do not have the right to employment under the State, the right to start an industry, purchase a motor vehicle and so on.

So, what is the issue?

Petitioners are contending that the provision of Article 35A was added through a Presidential order by the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. It was not passed through the Parliament. Hence, it is constitutionally invalid.

The order was issued under Article 370(1)(d) of the Constitution which allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.

Why does it matter?

It matters because the proper route of amending the constitution was bypassed when implementing this order. The changes in the constitution are required to be routed through the parliamentary route only as per Article 368 (i).

By implementing Article 35A, the President has overlooked article 368(i) and the parliament was not involved in amending the constitution.

Though the President may modify an existing provision in the Constitution under Article 370, the issue finally boils down to the President’s rights to amend the constitution without Parliament’s approval. This question remains open.

Should Article 35A be removed?

Intellectuals in the state are of the view that removal of Article 35-A shall result in more people coming into the state from other parts of India resulting in mass unemployment. They say that children won’t get educational opportunities in higher education, business classes will have to compete more and so on.

But the issue is, some people who have lived in J&K for decades now, are still not having the PRC (Permanent Resident Certificate).

However, the article has been modified through various Presidential Orders more than 40 times.

Under the existing arrangements, laws framed by the Jammu and Kashmir legislature exercising powers under Article 35A cannot be challenged on the ground of violation of fundamental right to equality of Indian citizens from other states.

Why don’t separatists and political parties want 35A to be removed?

Basically, if 35A is removed, the onus to provide jobs, education and fill government post will lie on the state government to all the people of J&K. Separatists fear the possibility of Hindus ‘flooding’ the valley.

Currently, only the PRC holders can get a job or buy a home in the valley.

The Case

Four petitions, which demanded the scrapping of the provision, have been listed before a bench of Chief Justice of India Dipak Misra and Justices AM Khanwilkar and DY Chandrachud.

The main petition was filed by ‘We the Citizens’, a Delhi-based NGO in 2014. Three more petitions were also filed challenging the Article but were later clubbed with the main one.

The issue has come to the centre stage of controversy after the Supreme Court’s indication that it may be dealt with by a five-judge constitution bench.

The issue has triggered controversy after a plea was filed by Charu Wali Khanna, a lawyer and former member of the National Commission for Women, challenging Article 35A of the Constitution and Section 6 of the Jammu and Kashmir Constitution which deal with the “permanent residents” of the state.

The plea has challenged certain provisions of the Constitution which deny property right to a woman who marries a person from outside the state. The provision, which makes such women from the state to lose rights over property, also applies to her son.

So what if Article 35A is removed?

Removing Article 35A will immediately nullify all the 41 subsequent Presidential Orders. This will restore pre-1954 arrangement between New Delhi and Jammu and Kashmir.

It would allow people from outside Jammu-Kashmir to settle in the state and acquire land and property, and the right to vote, thus altering the demography of the Muslim-majority state.

The Supreme Court and Election Commission of India would cease to extend over Jammu and Kashmir. The Centre’s jurisdiction over Jammu and Kashmir would be limited to only in the matters of Defence, External Affairs and Communication.

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