Significance of Article 35A in terms of Kashmir
Permanent residents, conferring special rights & privileges in state government jobs, acquisitions of property in the State, etc are some of the powers Article 35A gives to the State government/legislature of Jammu & Kashmir.
Added to the Constitution through a Presidential Order, in 1954 it is inserted in the Appendix 1 of Indian Constitution. Provision of this article further says that none of the act of legislature which comes under Article 35A can be challenged for violating the Constitution or any other law of the land.
WHY Article 35A in the news
As many as four petitions are filed in the Supreme Court challenging its constitutional validity. Saying that it is against the spirit of oneness and creates a class within the class of Indian citizens.
Following points were raised:
- An NGO “We the citizens” said in its petition that Article 35A was inserted in the Indian constitution through a Presidential order, and not through the elaborate procedure mentioned under Article 368 of the Indian Constitution.
- Right to reside & settle in any part of India, right to non discrimination are some of the fundamental rights which this Article 35A violates.
- Both Article 35A & Section 6 of Jammu & Kashmir Constitution which deals with the permanent residents provisions of the state was challenged by another group saying that both these clauses deny property right to a women who marries other than J&K resident and it denies property rights even to her children, thereby considering them illegitimate.
But, In a landmark judgement in October 2002, J&K high court held that women married to non-permanent residents will not lose their rights. The children of such women don’t have succession rights.
- Voting rights, services and acquisition of property are other areas which are challenged.
The main grounds on which the Article 35-A is challenged is, the conception of equality among the Indian citizens & the constitutionality of insertion of Article 35A.
What if Article 35A is scrapped
- It can disturb the region as local separatist leaders can invoke in people’s mind that central government is trying to disintegrate the region thus anti India sentiment can be instilled in their minds.
- People in Jammu will be insecure about local business as they will see influx from other states as major worry.
- Scrapping of this article will leave local political parties with no agenda, they will lose their relevance in the valley.
If by following judicial process Article 35A is done away with then Article 370 alone may not be used to prevent outsiders from settling in Kashmir.
Also, Only Article 1 and Article 370 of the Indian Constitution will then apply to J&K.
A larger debate needed on Article 35A including intelligentsia , political parties, and the civil society.As this is not only a constitutional or legal issue but its tinkering will have large socio economic impact in the valley and can disturb the region in a big way if done haphazardly.
Article 370
According to, Article 1 of the Indian Constitution, the State of Jammu and Kashmir (J&K) is a constituent state of Indian Union and its territory forms a part of the territory of India.
Where Article 370 in Part XXI of the Constitution grants a special status to it. So not all the provisions of the Constitution of India apply to it & being the only state in the Indian Union which has its own separate constitution. But in the same Part (XXI) of the Constitution, twelve other states too enjoy special status but not as majorly as Jammu & Kashmir do.
About Article 370
- It gives some autonomy to the state of Jammu & Kashmir to decide its internal matter.
- The state government has the control on how it needs to govern the state.
- Foreign Affairs, Finance and Communications & Defense are the area where Indian government’s law is applied for all other matters state makes the law.
- Emergency in the State of J&K can be imposed only on the grounds of internal disturbances and imminent danger from a foreign country.
- Financial emergency can’t be invoked in the State of J&K.
- Indian Citizens belonging to other states cannot buy land in Jammu & Kashmir.
PERMANENT RESIDENT Definition
The Jammu and Kashmir Constitution, which was adopted on November 17, 1956, defined a Permanent Resident (PR) of the state as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has “lawfully acquired immovable property in the state”.The Jammu and Kashmir state legislature can alter the definition of PR through a law passed with two-thirds majority.