Article 35A-Constitutional or Not?[Explained]
Article 35A of Indian Constitution is frequently seen in news and its important for both prelims and mains.Read fully to understand all important aspects of Article 35A.
Why is Article 35A in news?
The petitioner, Dr. Charu Wali Khanna, filed the case in Supreme Court to challenge the constitutional validity of Article 35-A. Though, she remains the second petitioner after We the Citizens (NGO), but her act has brought this issue in the limelight once again and is being hotly debated across the country and especially so, in J&K.
What is Article 35-A actually which has created so many controversies?
Article 35-A empowers the legislature of Jammu and Kashmir to:
a) Define classes of people who shall be called ‘permanent residents’ of Jammu and Kashmir state;
b) Confer special rights and privileges on such permanent residents of the state like:
- Only permanent residents can be employed in state services.
- Only permanent residents can buy immovable property within state.
- Only permanent residents can settle in the state.
- Only permanent residents can avail scholarships and other benefits provided or offered by the state government.
Further Art 35-A says that no provision contained in this Article shall bet
Section 6 of the Jammu and Kashmir Constitution also deals with the “permanent residents” of the state.
What is the controversy surrounding Article 35A?
- If the daughter of holder of state subject/permanent resident marries a person who does not own state subject, she would lose her permanent resident status of J&K state.
- Consequently her children would no longer be categorised as state subjects and their claim to properties, education and services under the state would stand terminated.
- Also West Pakistan refugees, who migrated to India and settled in J&K during the wars of 1965 and 1971, lack the status of permanent residents of the state. This denies them various rights as otherwise conferred by the state on permanent residents.
- In addition, the members of Valmiki Samaj are entitled for the job of sweepers only by virtue of state subject laws.
The petitioners claim that this particular article of the constitution allows discrimination not only between people of J&K and the rest of India but also amongst people of J&K and is in violation of Article 14 and 15 of the constitution.
Significance of Article 35A:
- The Article 35-A of the Constitution of India by itself does not create any right with any person but rather it protects State Subject laws from being evaluated being violative of the right of equality guaranteed under Article 14 of the Constitution of India.
- Further, if Article 35-A is declared as unconstitutional, it will only allow the Courts to look into the validity of the State Subject Laws.
Genesis of Article 35-A:
- Maharaja Harisingh, who was the dogra ruler of the princely state of J&K, passed notifications in 1927 and 1932. This imposed a law that defined state subjects and their rights. The law also regulated migrants to the state. J&K joined India through instrument of accession signed by its ruler Hari Singh in October 1947.
- After J&K’s accession, popular leader Sheikh Abdullah (grandfather of Omar Abdullah) took over reins from Dogra ruler. In 1949, he negotiated J&K’s political relationship with New Delhi, which led to the inclusion ofArticle 370 in the Constitution.
- Article 370 guarantees special status to J&K, restricting Union’s legislative powers over three areas: defence, foreign affairs and communications. These provisions were included in Instrument of Accession and were to be under the jurisdiction of the Union.
- However, under the 1952 Delhi Agreement which took place between Abdullah and Nehru, several provisions of the Constitution were extended to J&K via presidential order in 1954. Article 35A was inserted then.
- The ratification of Article 35-A, which was added by Presidential order, by parliament is still pending.
What do the proponents and opponents of Article 35-A have to say?
Arguments by Opponents
- This Article allows discrimination between male and female state subjects.
- This article creates a wall of separation between J&K and the rest of India since no-one from outside the settle can buy immovable property or take up employment in the state.
- The high percentage of unemployment amongst West Pakistan refugees due to lack of state subject certificate will make them potential recruit for terrorist organisations.
Arguments by proponents
- They fear that it would lead to further erosion of J&K’s autonomy and trigger demographic change in Muslim majority valley.
However, in the last 70 years, demography of Kashmir Valley has remained unchanged even as Hindu majority in Jammu and Buddhists in Ladakh have rights to buy property and settle in the Valley.
History of the Article 35A issue:
- In, Dr Susheela Sawhney versus state of Jammu and Kashmir, this issue has been settled by a full bench of the High Court in 2002.
- In that case, the full bench of High Court in its majority view had held that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of the state of Jammu and Kashmir.
- But no formal notice has been issued in the matter to the state government.
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Way forward for Supreme Court:
A number of questions stand in front of Supreme Court to deliberate upon especially:
- Whether the President of India has the legislative power to introduce a new Article to the Constitution of India(as Article 35-A is the new Article in the Constitution of India) whereas Presidential Order under Article 370 only refers to the extension of existing provisions of the Constitution of India with such modifications as may be suggested by the State Government while giving concurrence?
- Whether Article 35-A protects the State Subject Laws which are discriminatory in nature and which are otherwise indefensible under challenge?
- Whether the State Government was justified in taking away the right of ‘acquisition of State subject by permission’, as was enacted by the Ruler of the State in 1927 and 1932?
The debate once settled in Supreme Court will decide whether J&K continues to remain a separate entity within the Union, or not. This will also decide the whole issue of tendency of separatism prevailing in the state of J&K.
Questions for Prelims
Q1. Article 35-A was added to the constitution by:
- An amendment under Art 368.
- Presidential order.
- Presidential order, later ratified by parliament.
- An act of J&K state legislature and ratified by parliament.
Q2. Consider the following statements:
I: Article 35-A does not allow non-state subject to avail scholarships offered by J&K state government.
II: This article treats male as well as female state subjects on equal parameters in all respects.
Choose the correct option code:
- I only
- II only
Questions for Mains
Q1. What special privileges are offered by Article 35-A to permanent residents of J&K state? How does it create a wall of separation between permanent residents and the rest of India? Discuss.
Q2. Was it justified the way Article 35-A was added to the Indian Constitution? What steps should the government take in order to prevent a sense of alienation among the residents of J&K state, who would see their state autonomy being diluted, if this article stands nullified by SC? Comment.
>>Article submitted by Shubham Mehta.
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