Article 35A of Indian Constitution || Why is Article 35A in News now?

What is Article 35A of Indian Constitution ?

Article 35A of Indian Constitution
Article 35A of Indian Constitution
  • It was added by a 1954 presidential order issued under Article 370, the constitutional provision that mediates the relationship between the Union of India and Kashmir.
  • The Jammu & Kashmir Constitution which was adopted on November 17, 1954, defines a permanent Resident 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 J&K Legislature can alter the definition of Permanent Residents only through a law passed by a two third majority in Assembly.
  • Article 35A of the Indian Constitution is an article that empowers the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents.
  • Article 35A also empowers the State’s legislature to frame any law without attracting a challenge on grounds of violating the Right to Equality of people from other States or any other right under the Constitution.


Why is Article 35A in News now?

  • Recently a petition has been filed in the Supreme Court (SC) by a Kashmiri woman, who has been denied the right to property in the state by virtue of Article 35A.
  • In its response, the court sent notices to the Centre and the state governments to address her plea.
  • The central government responded in SC that since Article 35A raises several "sensitive questions" so the point about its legality demands a "larger debate".
  • In 2014, an NGO named "We the Citizens", had also challenged Article 35A in Supreme Court  on grounds that 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 , the Central Government did not do so, despite pleas from the state government.

Controversies over Article 35A:

  • It’s interesting to note here that the present PR Law replicates a state subject law promulgated by Dogra King Maharaja Hari Singh in 1927 following a strong campaign by Kashmiri Pandits, who were opposed to the hiring of civil servants from Punjab because it affected their representation and monopoly in the Kashmir administration.
  • In 2014, the “We the Citizens” NGO filed a writ petition seeking striking down of Article 35 A. While the J&K government filed a counter- affidavit and sought dismissal of the petition , the Central Government did not do so, despite pleas from the state government, especially its ally PDP.
  • On July 17, Attorney General KK Venugopal has told the bench of them Chief Justice JS Khehar and Justice DY Chandrachud that the petition raised constitutional issues, after which the court referred the matter to a three- judge bench and set six weeks for final disposal. The Centre refused to take a stand on the issue with the AG telling the Court that the question was “very sensitive” and required a “larger debate”.
  • The Union Government’s decision to abstain from supporting the J&K State government’s position, has been seen by some as part of a series of moves by it to weaken J&K’s special status. The Hindutva parties of India are opposed to Article 35A because it bars non- state subjects from settling and buying properties in J&K. The state Law Minister Abdul Haq Khan along with state Advocate General Jahangir Ganai have been camping in New Delhi, given the sensitivity of the case.
  • On 29 Oct 2017, separatist leaders Syed Ali Shah Geelani, Mirwaiz Umar Farooq and Mohammed Yasin Malik issued a joint statement urging the people of Kashmir to launch a “ mass agitation” if the Supreme Court cleared repeal of Article 35 A. “ A conspiracy has been hatched to change the demography of the Muslim majority state.
  • Any move to tinker with a state subject law will create a Palestine – like Situation “.the statement screamed. The present challenge to Article 35 A in the Supreme Court is based on the ground that it could have been introduced in the Constitution only through a constitutional amendment under Article 368 and not through a Presidential Order under Article 370.However this is an argument that the Supreme Court has rejected on at least three occasions earlier.


Arguments in favour of scrapping Article 35A

  • The petitioners have challenged Article 35A on ground that it can only be introduced through Constitutional amendment under Article 368 and not through a Presidential Order under Article 370.
  • Article 35A is against very spirit of oneness of India as it creates a class within a class of Indian citizens. It restricts citizens from other States from getting employment or buying property within J&K, thus is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.
  • Article 35A is gender-biased and also against Article 14 of the Constitution as it denies property rights to J&K permanent resident woman who marries a non-resident while a man who marries outside state will continue to enjoy his rights.

Arguments against scrapping Article 35A:

  • Scrapping the Article 35A is seen as an assault on the special status of the Jammu and Kashmir by the state government.
  • Article 35A cannot be challenged on the ground that they affect the fundamental rights of the other Indian Citizens.
  • The rights of the state legislature are not unlimited and can be given only in the case of – Employment, Property, Settlement and Scholarship.
  • Kashmiris are apprehensive that such a move would be dominated by the Hindu nationalist groups.
  • Former chief minister Omar Abdullah also stated that this would create a bigger agitation as was witnessed in 2008 over the transfer of land to the Amarnath Shrine Board.


Conclusion:

The nation is anxiously waiting for the Supreme Court verdict. If the verdict is in favour for the repealing of Article 35 A , it could unleash fresh violence and protect in Kashmir. It’s wise to remember- always the victims of such turmoil are innocent gullible common people of Kashmir and security personnel, not the perpetrators of mischief.

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