Article 35A of the Indian Constitution: What is the controversy?
The Article 35A of the Indian Constitution was in news recently as the Supreme Court on August 6, 2018 adjourned the hearing on pleas challenging Constitutional validity of Article 35A pertaining to Jammu and Kashmir (J&K).
The apex court stated that the petitions on Article 35A will now be heard in week commencing August 27, 2018. The court maintained that it will only look into "whether Article 35A goes against the basic structure of Constitution."
The crucial hearing was adjourned as Justice DY Chandrachud, one of three judges in bench, was not present. The matter was initially listed for hearing before a bench comprising Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud.
Controversy regarding Constitutional validity of Article 35A
• The Article 35A appears in the Constitution as an “appendix” and not as an amendment. In 2014, an NGO ‘We the Citizens’ filed a writ petition in the Supreme Court seeking the striking down of Article 35A as it was not added to the Constitution through following the procedure prescribed in the Article 368 of the Indian Constitution, hence, it lacks parliamentary sanction.
• In response, while the J&K Government filed a counter-affidavit and sought dismissal of the petition, the Union Government did not.
• In 2017, two Kashmiri women filed another case in Supreme Court against Article 35A for its discrimination against J&K women.
• As a response, in July 2017, Attorney General K K Venugopal told the Supreme Court 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 another date 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.
Article 35A of the Indian Constitution (Appendix II)
The Article 35A was added to the Indian Constitution (Appendix II) through a Presidential Order - The Constitution (Application to Jammu and Kashmir) Order, 1954. The order was issued by the then President Rajendra Prasad on May 14, 1954 in exercise of the powers conferred by clause (1) of Article 370.
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.
The Article 370 of the Indian Constitution accords special status to Jammu and Kashmir and acts like a bridge between the Indian Constitution and the Constitution of Jammu and Kashmir.
Article 35A: Origin
• 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.
• 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.
Definition of permanent resident as per J&K constitution
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.
Provisions of Article 35A
• 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.
Text of Article 35A
The Article 35A of the Indian Constitution reads as follows -
“ Saving of laws with respect to permanent residents and their rights — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State: (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part. “