What is Article 35A?
Article 35A and Article 370 in the Constitution of India have provided special rights and privileges to the permanent residents of J&K and grant special status to the State of Jammu and Kashmir.
Article 370 was added in the Indian Constitution after the agreement signed between former Prime Minister Jawaharlal Nehru and Maharaja Hari Singh of Jammu Kashmir.
In 1952 "Delhi Agreement" was signed between the then Prime Minister of Jammu and Kashmir, Sheikh Abdullah and the Prime Minister of India, Jawaharlal Nehru. The agreement extended Indian citizenship to the 'State subjects' of Jammu and Kashmir. After the Delhi agitation of 1952, the famous 'Article 35A' was added to the Constitution in 1954.
Image source: News State
(Signing Sheikh Abdullah and Nehru ji signing Delhi Agreement)
As we know that the constitution of Jammu and Kashmir was adopted on 17 November, 1956. According to this constitution, Permanent Resident (PR) of the state of Jammu and Kashmir is a person who has a state subject on 14 May, 1954 or who has been a resident of the state for 10 years and has "lawfully acquired immovable property in the state".
Now let us study about article 35A
Article 35A of the constitution provide Jammu and Kashmir Legislature a carte blanche to decide who all are 'permanent residents' of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. It is mandatory according to the provision that no act of the legislature coming under it can be challenged for violating the Constitution or any law of the land.
What are the main provisions in Article 35A?
- A person who is not a Permanent Resident of Jammu and Kashmir can't own property there.
- Resident of any other state of India cannot become a Permanent Resident of Jammu and Kashmir and therefore cannot cast vote there.
- It forbids Indian citizens from acquiring immovable properties and can't seek employment in the state.
- If a girl of Jammu and Kashmir marries to a person who does not hold a permanent resident certificate of J&K, then she would lose her property right and their children also become ineligible to claim the property of their mother.
- This article discriminates with the citizens of India because of the enforcement of this article 35A. As, the people of India are denied with the Permanent Resident certificate of Jammu and Kashmir while the intruders from Pakistan were granted citizenship. Recently Rohingya Muslims from Myanmar in Kashmir have been allowed to settle.
- It conflicts with fundamental rights under Article 14, 19 and 21 of the Constitution.
- Article 35A also adversely affects the economic development of the state.
- Meritorious students are denied scholarships and they cannot even seek redress in any court of law.
- Also, the issues regarding refugees who migrated to J&K during Partition are still not treated as "State subjects" under the Jammu and Kashmir Constitution.
- Article 35A was inserted unconstitutionally, bypassing Article 368 which empowers only Parliament to amend the Constitution.
Why to remove article 35A is in demand? Why does it matter?
- The first argument to remove it is that it was not implemented through parliament. That is Article 35A is void because the Nehru government did not place it before Parliament for discussion.
- Many refugees from Pakistan came to India during the partition of the country. Among them, lakhs of refugees are living in the state of Jammu and Kashmir and they have been given citizenship there.
- Jammu and Kashmir Government, through article 35A denied Permanent Certificate to mostly 80% of the people who are backward and belongs to the Dalit Hindu community.
Do you know who is a Permanent Resident of J&K?
This issue is in demanding which surrounds the Article 35A. The 1956 Jammu and Kashmir Constitution actually defines a Permanent Resident as one who must be a citizen of India and a state subject on 14 May, 1954, or a resident of the state for ten years, and owns immovable property in the state . Who support this says that it is necessary to protect the demographic profile of the state and according to critics it goes against the spirit of oneness and equality of Indian citizenship.
The president has incorporated Article 35A, the parliamentary route of lawmaking is bypassed. On the other side if we see that Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution. So did the President act outside his jurisdiction?
In March 1961, a five bench Judge of the Supreme Court judgement in Puranlal Lakhanpal vs. The President of India discusses the powers of President's under Article 370 to 'modify' the Constitution. The court observes that under Article 370 of the Constitution, the President may modify an existing provision in the Constitution; the judgement is silent that whether the president can, without the Parliament's knowledge, introduce a new Article. This question remains open.
Further, a writ petition filed by NGO We the citizen’s challenges the validity of both Articles 35A and Article 370. The petition said that Article 35A is against the "very spirit of oneness of India" as it creates a "class within a class of Indian citizens".
Another petition was filed by Jammu and Kashmir native Charu Wali Khanna has challenged Article 35A for protecting certain provisions of the Jammu and Kashmir Constitution, which restrict the basic right to property if a native woman marries a man not holding a permanent resident certificate. Even her children will also be denied a permanent resident certificate.
Therefore, we can say that the people filed petition in front of the Supreme Court that due to Article 35A, their basic or fundamental rights were infringed in Jammu and Kashmir State, so the Central Government immediately remove Article 35A that was enforced by the President's order.
On a concluding note we can say that the matter is sensitive and requires participation of several stakeholders and requires a larger debate. On the other side it is necessary to provide confidence to the residents of J&K that any alteration in status quo will not take away their rights but will boost Jammu and Kashmir's prosperity and it will open doors for more investment, new opportunities, new employment etc. No doubt the Article 35A that was incorporated about several decades ago requires a relook.