Fact Box: Article 35A of the Indian Constitution

Aug 10, 2017 10:17 IST

Jammu and Kashmir (J&K) Chief Minister Mehbooba Mufti on 7 August 2017 met political rival National Conference leader Farooq Abdullah to seek his support in preventing the revocation of Article 35A by the Union Government.

As per Mufti, revoking Article 35A will be a serious threat to the special status of the state, which is guaranteed by Article 370. The tensions regarding the law escalated due to the impending judgement of Supreme Court regarding the validity of Article 35A.

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Article 35A  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.

It was added to Constitution through ‘Constitution (Application to Jammu and Kashmir) Order issued by President Rajendra Prasad on 14 May 1954, in exercise of powers conferred by clause (1) of Article 370.

Origin of Article 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 a separate notification by the maharaja in 1927 and 1932 which defined the state subjects and their rights.

J&K Constitution, framed in 1956, retained Maharaja's definition of permanent residents.

J&K constitution defined a permanent resident 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.

Under Article 35A, emigrants from J&K, including those who migrated to Pakistan, are considered state subjects. The descendants of emigrants are considered state subjects for two generations.

It prohibits non-permanent residents from acquiring immovable property, government jobs, scholarships and aid in the state.

It gives 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.

In 2014, an NGO ‘We the Citizens’ filed a writ petition in the Supreme Court seeking the striking down of Article 35 A as it was not added to the Constitution through amendment under Article 368.

While the J&K government filed a counter-affidavit and sought dismissal of the petition but the Union Government did not.

The Presidential Order of 1954 provided framework for the division of powers between J&K and the Union Government under Article 370. If Supreme Court strikes down Article 35A, it will have serious impact on all subsequent Presidential Orders.

In 2017, two Kashmiri women filed another case in Supreme Court against Article 35A for its discrimination against J&K women.

In July 2017, Attorney General K K Venugopal told SC that Union government was not keen on filing an affidavit in the Article 35A case, instead the government wants a 'larger debate'.

Following this, the 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 Kashmir.

It is feared that the scrapping of Article 35A could trigger an explosive situation in J&K.

 

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