Ever since a 2-Judge Bench of the Supreme Court on 17 July 2017 referred a Public Interest Litigation to decide upon the validity of the Article 35A of the Indian Constitution to a larger Bench and set a deadline of six weeks for it, there has been a debate across the country, especially in Jammu and Kashmir, over the provisions of the Article 35A and the Article 370 of the Indian Constitution that accords special status to Jammu and Kashmir.
It is against this backdrop, it is pertinent to understand the provisions of the Article 35A and the arguments in favour and against the Article, which are provided below.
Provision of Art 35A of the Indian Constitution
The Article 35A of the Indian Constitution reads as follows -
“ Saving of laws with respect to permanent residents and their rights — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State: (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) 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. “
The Article was added to the Indian Constitution (Mentioned in Appendix II) through a Presidential Order -The Constitution (Application to Jammu and Kashmir) Order, 1954. The order was issued by the then President Rajendra Prasad on 14 May 1954 in exercise of the powers conferred by clause (1) of Article 370.
In a nutshell, the Article empowers the Jammu and Kashmir state's legislature to define “permanent residents” of the state and provide special rights and privileges to these permanent residents in terms of employment, acquisition of property, scholarships, etc.
Origin of the provisions of the Article 35A dates back to 1927 when the Dogras from Jammu approached Maharaja Hari Singh fearing that arrival of people from Punjab will lead to their control in government services. These fears led to the issuance of notifications by Hari Singh in 1927 and 1932 which defined the State subjects and their rights.
The Presidential Order of 1954 provided a framework, which includes the addition of Art 35A to the Indian Constitution, for the division of powers between J&K and the Union Government under Article 370. The Constitution of Jammu and Kashmir, which was framed in 1956 retained the definitions of Permanent Residents in the 1927 and 1932 notifications. A permanent resident was defined as - A person who was born or settled in J&K before 1911 or has been resident in the state for 10 years after lawfully acquiring property in State.
In 2014, an NGO ‘We the Citizens’ filed a writ petition in the Supreme Court seeking the striking down of the Article 35A as it was not added to the Constitution through following the procedure prescribed in the Article 368 of the Indian Constitution.
In response, while the J&K Government filed a counter-affidavit and sought dismissal of the petition, the Union Government did not. Similarly, two Kashmiri women filed another case in the Supreme Court in 2017 against the Article 35A for its discrimination against J&K women.
As a response, in a recent hearing in July 2017, Attorney General K K Venugopal told SC that Union Government was not keen on filing an affidavit in the case, instead, the government wants a 'larger debate' on the subject.
Following this, the apex court referred the matter to a three-judge bench and set six weeks time for final disposal of the case, leading to an uproar in Jammu and Kashmir.
Arguments against the Article 35A
The following arguments are put forward against the Article 35A.
i. It was not added to the Constitution by following the procedure prescribed for amendment of the Constitution of India under the Article 368. Hence, it violates the Constitutional procedures established by law as the legislation, including Amendment to Constitution, is the sole function of the Parliament and not that of the executive.
ii. The Permanent Resident classification backed by the Article 35A violates the Article 14 of the Constitution, which confers the fundamental right to equality before the Law. The Art 35A is in direct violation of the fundamental right as the non-resident Indian citizens cannot have the rights and privileges, same as permanent residents of Jammu and Kashmir.
iii. The resolutions passed by the State legislature under the Article give succession rights to the children of men who are married to non-permanent women residents, but denies the same to the children of women in the same position. It leads to the violation of the right of a woman to ‘marry a man of her choice’. If a J&K woman marries a non-Permanent Resident of J&K, their heirs loose to any right to property.
iv. The social development also takes a back seat as entrepreneurs and professionals are not willing to settle in the State due to the restrictions on acquiring property, employment, etc.
Arguments in favour of the Article 35A
The following arguments are put forward in favour of the Art 35A.
i. As per the Constitutional experts, there are various articles in the Constitution that contains special provisions (Art. 371 and Art. 371A-I) with regard to various Indian States. Moreover, the Article 370 is part of the original constitution, and hence, the Article 35A also flows from it.
ii. Article 35A seeks to protect the demographic status of the Jammu and Kashmir State in its prescribed constitutional form.
iii. Article 35A of the Constitution of India, in any manner, doesn’t seek to extend something new to the State but only clarifies the already existing relationship between the Constitution of India and the Constitution of Jammu and Kashmir.
iv. In over six decades, the President of India has issued 41 Constitutional Application Orders that relate to the applicability of the various provisions of the Indian Constitution to Jammu and Kashmir, including, replacing the elected Sadr-e-Riyasat with a Governor chosen by the Union Government and changing the ‘Prime Minister’ of the state to the Chief Minister. Hence, If the apex court rules that Art 35A is in violation of the Constitution, such a judgment will have to be made applicable to all the Constitutional Application Orders from 1950 till date.
Jammu and Kashmir is an integral part of India. The State occupies a special status in the political realm of the country due to historical and geographical factors. The Article 370 of the Indian Constitution accords legal backing to this understanding and act like a bridge between the Indian Constitution and the Constitution of Jammu and Kashmir. As the present controversy over the Article 35A, albeit indirectly, is touching upon some of the fundamental tenants governing the Centre-State relationship vis-à-vis Jammu and Kashmir, the judiciary, as the custodian of the Constitution, is the right platform to decide upon the issue.