What is Article 35A ? Article 35A does not form part of the 395 Articles of the Constitution. It is found in one of the appendices of the Constitution. Article 35A was inserted through a Presidential Order in 1954. A bunch of four petitions is before the Supreme Court challenging its constitutional validity.
Article 35A empowers Jammu and Kashmir legislature to define “permanent residents” of the state along with their special rights and privileges. This Article has an intricate relationship with Article 370.
A three-judge bench of the Supreme Court will hear on Monday for a final disposition of a legion that challenges Article 35A of the Constitution. The Article relates to the special rights and privileges of the residents of Jammu and Kashmir.
It was added to the Constitution by a Presidential Order in 1954. It empowers the state’s legislature to frame laws without attracting a challenge on grounds of violating the Right to Equality of people from other states or any other right under the Constitution.
The petition was filed by a Delhi-based NGO, We the Citizens, which wants the state-specific law repealed.
WHO ARE PERMANENT RESIDENTS?
Jammu and Kashmir Assembly defined Permanent Resident as a person who was a state subject on May 14, 1954 or who had been a resident of the state for 10 years and has “lawfully acquired immovable property in the state.”
A person who is not a permanent resident of Jammu and Kashmir is not allowed to buy or own properties in the state or vote in state Assembly election or contest election to the state Assembly. An outsider cannot get a job in the Jammu and Kashmir government.
WHAT IS HAPPENING NOW?
Of the four petitioners challenging the Article 35A is an RSS-linked NGO, We the Citizen. The NGO has challenged Article 35A on the grounds that it was not brought through constitutional amendment as required under Article 368. We the Citizen also contended that Article 35A was never presented before Parliament for approval.
The Supreme Court has set up a three-judge bench to hear the matter. The responses from the state government and the Centre have made the debate over Article 35A interesting.
The Centre submitted that it would be appropriate for the Supreme Court to settle the Article 35A debate as it involved complex issues of constitutionality. The Jammu and Kashmir government, on the other hand, has favoured maintaining status quo. It said that since Article 35A had been in use for over sixty years, it was as good as an established law.
Two Kashmiri women have also challenged Article 35A contending that the provision is discriminatory as it disenfranchises their children. Under the original provisions of Article 35A, Kashmiri women marrying an outsider lost all her rights and privileges.
The Jammu and Kashmir High Court in 2002 had held that the women would continue to enjoy their rights and privileges even if they married an outsider. However, children of such women have no claim in succession.
WHAT IF ARTICLE 35A IS DECLARED UNCONSTITUTIONAL?
Repealing Article 35A may have far reaching implications. It will immediately nullify all the 41 subsequent Presidential Orders. This will restore pre-1954 arrangement between New Delhi and Jammu and Kashmir.
The Governor and the Chief Minister of Jammu and Kashmir would be addressed as the Sadr-e-Riyasat (President) and Wazir-e-Azam (Prime Minister) respectively as before.
The jurisdiction of the Supreme Court and the Election Commission of India would cease to extend over Jammu and Kashmir. The Centre’s jurisdiction over Jammu and Kashmir would be limited to only in the matters of Defence, External Affairs and Communication.
If Article 35A is done away with through judicial process, Article 370 alone may not be used to prevent outsiders from settling in Kashmir.
AND THEN, THERE IS POLITICS
The RSS and BJP believe that the current demographic composition of Kashmir is the combined effect of Article 370 and Article 35A. The RSS also perceives the issues of separatism and terrorism in Kashmir is because of its Muslim dominated demography.
Article 35A that prevents outsiders from buying or owning properties in Kashmir allows the Buddhists of Ladakh and Hindus from Jammu region to settle down in the Valley.
While Article 370 has been a polarising debate in the context of Kashmir, Article 35A presents a valid constitutional loophole to be challenged in the courts.
On the other hand, the political parties of Jammu and Kashmir are against the idea of repealing Article 35A. They perceive it against the popular view of the people who vote for them in every election.
The separatists have also been voicing their opposition to any alteration in Articles 35A and 370. The Supreme Court verdict on Article 35A may be a watershed for Kashmir politics.
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