Should Article 35A be scrapped?

Should Article 35A be scrapped?

Article:

1. Different views on article 35A.

Important Analysis:

2. Article 35Aof the Indian Constitution is an article that empowers the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. Such laws granting special rights to permanent residents would not be deemed a violation of the fundamental rights of other citizens.

3. As per Instrument of Accession, J&K was an integral part of India signed by Maharaja Hari Singh in 1947.

4. However there is a long pending debate on the necessity of Article 35A.

5. Bhupendra Yadava politician in his view has expressed Article 35A should be scrapped because

• Article 35A was added into the constitution through presidential order without constitution amendment laid down in Article 368.
• Raises concern over exercise of power under Article 370(1) (d) to insert a new article in the constitution.
• Article 35A has created a classification between Permanent and non-permanent citizen of J&K.
• Non-Permanent citizen are treated as a second class citizen against the principal of equality.
• Denial of basic rights to non-permanent citizen (e.g. employment under state and debarred from contesting election).
• Women who marry outside sufferings more as her child cannot become permanent citizen and loses inheritance rights.
• Discrimination against the refugees who migrated to J&K after partition. They are not listed in the “state subject”

6. According to him, Article 35A has its existence since long back and need alteration.

7. Alteration will not take away their basic rights but will bring more prosperity in investment and opportunities.

8. Manish Tiwari, a lawyer, is against the scrapping of Article 35A

9. He explained the reason why the Article 35A was not found in original constitution.

• Maharaja Hari Singh was not certain about his decision after the partition plan announced on June 3, 1947.
• Pakistan did not honor Standstill Agreement which was signed with both India and Pakistan on Aug 12, 1947.
• When confronted with Pakistan, J&K signed Instrument of Accession on Oct 26, 1947.
• Instrument of Accession gave India the power to make laws only on Defence, External Affairs, Communications, and ancillary matters.
• Decision on Plebiscite still pending in United Nation.
• As per Delhi agreement, under Article 5 of the constitution, person domicile of J&K was regarded as a citizen of India and gave power to state to make laws on special rights and privileges on state subject.
• Fundamental rights of the Indian constitution could not be made applicable to J&K.

10. According to him striking down Article 35A will have implication on 1954 Presidential Order which may arouse further constitutional amendments.

11. Further development has participated in the debate when Prashant Bhushan has shared his views.

12. Prashant Bhushan, Advocate in Supreme Court said it is complicated to decide if Article 35A should be scrapped or not. According to him

• Kashmir never acceded fully to India. Therefore, it is a quasi-sovereign State.
• Article 35A came through Presidential order because center has limited rights under Instrument of Accession.

13. Article 35A is only a recognition of the conditional accession of J&K into India and the restrictions placed on both Parliament and the Constitution that the normal powers of Parliament to make laws will not apply to J&K.

14. It is Article 370 that restricted the application of certain provisions of the Constitution to J&K.

15. It is pursuant to Article 370 that Article 35A was inserted by way of the 1954 Presidential Order.

16. According to him Article 35 A protects the rights of the people whereas Article 370 protects and grants special status to J&K which place restriction on parliament and promote state autonomy.

17. He also points out that Himachal Pradesh and Uttarakhand have laws which say that no outsider can buy land.

18. According to him these laws are unconstitutional and violate two fundamental rights — the freedom to reside and settle in any part of the territory of India and the freedom to practise any profession, trade and business.

19. But because the accession of J&K was conditional therefore article 370 0r 35A cannot be challenged on the ground that it violates fundamental rights or the basic structure of the Constitution

20. According to him, it is for the J&K to decide, according to its laws, on the issue of discrimination against women with regard to property rights.

21. Although such a law is discriminatory according to the Indian Constitution, and is repugnant to the issue of gender equality.