Article 35A – An Analysis

Context

A three-judge Bench is currently hearing whether the petitions challenging Article 35A should be referred to a Constitution Bench for an in-depth examination

Background

• Jammu and Kashmir became a part of India through instrument of accession signed by its ruler Hari Singh in October 1947.
• After Jammu and Kashmir’s accession, Sheikh Abdullah (Sadr-i-Riyasat) negotiated Jammu and Kashmir’s political relationship with New Delhi, which led to the inclusion of Article 370 in the Constitution.
• Article 370 guarantees special status to Jammu and Kashmir, restricting Union’s legislative power
• However, under the Delhi Agreement 1952 between sheikh Abdullah and PM Jawahar Lal Nehru, several provisions of the Constitution were extended to Jammu and Kashmir via Presidential Order in 1954 including Article 35A.
• 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.

What is article 35A

Article 35-A empowers the legislature of Jammu and Kashmir to

1. Define classes of people who shall be called ‘permanent residents’ of Jammu and Kashmir state;
2. conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as

• employment under the State Government;
• acquisition of immovable property in the State;
• settlement in the State; or
• right to scholarships and such other forms of aid as the State Government may provide,

1. Further Art 35-A says that no provision contained in this Article shall be challenged for violating the constitution or any other law of the land

Permanent Resident

1. The 1956 Jammu and Kashmir Constitution defines a Permanent Resident as one who

• Must be a citizen of India and a state subject on May 14, 1954, or
• A resident of the state for 10 years, and owns immovable property in the state

1. It bars Indian citizens from settling in state, acquiring immovable properties seeking employment or undertaking any trade or business if state makes any law to that effect and it cannot be challenged before any court.
2. If a native woman marries a man not holding a permanent resident certificate of Jammu & Kashmir then she would restrict from her property right

Issues with article 35A

SC is hearing few cases over the validity of Article 35A. It has three major issues

Constitutional validity of Article 35A

• In 2014, an NGO ‘We the Citizens’ filed a writ petition in the Supreme Court to declare Article 35A unconstitutional as it was introduced under article 368
• The Presidential Order was issued under Article 370(1)(d), which allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of Jammu and Kashmir.
• However, A five-judge Bench of the Supreme Court in Puranlal Lakhanpal vs. The President of India (1961) court concludes that the President has the power to modify the Constitution under Article 370

• Although, the judgement is silent as to whether the President is empowered to bring about a radical change in the Constitution by introducing a new Article

Gender Discrimination

• It denies property rights to woman who marries a non-permanent resident and her children

Undermine the rights of West Pakistan refugee

• Persons who migrated from Pakistan to India in 1947 are denied the permanent resident status despite of repeated assurance from government.
• However, The Resettlement Act of 1982, passed by the Jammu and Kashmir legislature, gave such persons and their children the rights of permanent residents. But permanent resident certificate is still not granted

Other Issues with Article 35A

• It violates fundamental rights under Articles 14, 19 and 21 of the Constitution
• Critics argue that 35A has resulted in radicalization and ghettoization. Special status to Kashmir has an impact on the Kashmiriyat i.e. a composite culture
• It impacts economic development of state
• A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”.

Arguments against scrapping of Article 35A

• Removing 35A would change the demography of Kashmir
• This violates the constitution which grants special status to Kashmir. It also violates terms and conditions laid out in different instruments of accession.
• Removing Article 35A would also impact the special provision provided to Mizoram, Nagaland, Himachal Pradesh under Article 371
• There is fear that it would lead to further erosion of Jammu and Kashmir autonomy
• The rights of the state legislature are not unlimited and can be given only in the case of – Employment, Property, Settlement and Scholarship
• There is fear that scrapping of article 35A would be used by separatist and militant elements to spread a feeling of hatred

Way Ahead

• Both center and state must take precautionary measures before the final judgment of supreme court
• Court should consult all the stakeholders including intelligentsia and civil society
• Court must consider the political situation of Kashmir before reaching a conclusion
• The decision must ensure that the fragile ecosystem of the Kashmir valley is preserved in its pristine nature. Overcrowding and unregulated buying of lands may result in water and soil pollution, ecological problems, etc. thereby impacting the tourism of Kashmir.