The Constitutional status of Article 35A

Context:

Article 35A of the Constitution of India, unknown to the public domain till recent times, has gained up an intense debate in the country.

Why the Article 35A recently in news?

• Refugees from West Pakistan, who had migrated to India during Partition, have moved to the Supreme Court challenging Article 35A of the Constitution.
• The petitions filed by these refugees said nearly 3 lakh refugees had arrived from West Pakistan, but those settled in Jammu and Kashmir had been denied the rights guaranteed under Article 35A.
• The petitioners argued that the they were assured by the government that they would be granted Permanent Resident Certificates(PRC), which would permit them to purchase properties , own a house, opportunity to get a government job and reservation benefits.

What is Article 35A ?

• Article 35A of the Indian Constitution is an article that empowers the J&K state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents.
• It also empowers the state’s legislature to frame any law without attracting a challenge on grounds of violating the Right to Equality of people from other states or any other right under the Indian Constitution.
• Article 35A permits the legislature of Jammu and Kashmir to define a list of “permanent residents” of the state, who are eligible to vote, work for the state government, own land and property within the state as well as secure public employments and college admissions.

How did it come about?

• Article 35A, which was added to the Constitution by a Presidential Order in 1954, accords special rights and privileges to citizens of Jammu and Kashmir.
• It was added by then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.
• The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and then Prime Minister of Jammu and Kashmir Sheikh Abdullah.
• The Presidential Order was issued under Article 370 (1) (d) of the Constitution.

What are the various provisions of this Article?

Some of the provisions of Article 35A are as follows:

• The Article provides that the consent of the state assembly is necessary for the implementation of the laws passed by the parliament except in finance, foreign and defense sector.
• It empowers Jammu and Kashmir to enlist the permanent residents of the state.
• No other Indian except the permanent residents of Jammu and Kashmir can buy property in the state.
• The women of J&K marrying outside lose their right to inheritance.

What are the various issues involved?

• The provisions of Article 35 A violates the right of women to marry a man of their choice by not giving the heirs any right to property, it the women marries a man not holding permanent residence.
• The entire industrial sector and private sector suffers due to the property ownership restrictions.
• Students are facing problems in taking admission in colleges.
• It violates the basic structure of constitution
• The barring of the outsiders to buy land in J&K raises the issue of Right to equality(Article14-16).

What are the criticisms of this Article?

• It has been criticized of being unfair to the women.
• It challenges the gender equality
• Along with the validity of article 370, this article is being challenged for its existence and longevity in the Indian constitution.
• Article 35A was not added by parliamentary procedure under article 368. It has been enacted by executive order by president and it has to procedure by legislature procedure.
• Article 35A suffers from the violation of Article 14, equality before the law.
• It prohibits a non-resident from owning property in the State of J&K, is discriminatory and violates Art 19(d) and Article 19(e)

What are the ways to amend the Constitution?

• Article 368 is the only way to amend the Constitution, not the President.
• The Article 368 states “Power of the Parliament to amend the Constitution
• An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by majority of the total membership of that House and by a majority of not less than two-third of the members of that House present and voting.

Conclusion:

Instead of politicization the issue, it has to be dealt in the most prudent way and considering the welfare of the state as a whole along with uphelding the constitutional validity.