Article 35A & Kashmir

Context:

  • Larger debate on constitutional validity of A35A and A370 is needed.
  • Refugees of West Pakistan, who had migrated to India during the 1947 partition, have moved the Supreme Court challenging Article 35A of the Constitution.
What is Article 35A?
  • 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
  • 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.
Details about how it was added which might make it unconstitutional:
  • Article 35A was added into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Union Cabinet led by Jawaharlal Nehru. The controversial Constitution (Application to Jammu  and Kashmir) Order of 1954 followed the 1952 Delhi Agreement, which provided Indian citizenship to the citizens of J&K.
  • The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This feature allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of citizens of J&K.
  • So Article 35A was included in the Constitution as a mark of the special consideration the Indian government extended to the ‘permanent residents’ of J&K.
  • The President incorporated Article 35A into the Constitution by bypassing the parliamentary route. Article 368 (i) of the Constitution mandates that only the Parliament can amend the Constitution. So the question is did the President act outside his jurisdiction? Is Article 35A null and void because the government did not carry out a Parliamentary discussion?
  • A five-judge Bench of the Supreme Court in its 1961 judgment discussed the powers of the President under Article 370 to ‘amend’ the Constitution, during the Puranlal Lakhanpal vs. The President of India case. The court observed that the President can modify an existing article in the Constitution under Article 370 but the SC ruling is silent over the President’s power to introduce a new Article without the Parliament’s knowledge. This question remains unanswered.
Who is a permanent resident?
  • The 1956 J&K Constitution defines a Permanent Resident as one who, apart from being an Indian citizen, was a state subject on May 14, 1954, or a resident of the state for 10 years, and owns immovable property in the state.
What petitioners say?
  • The petitioners have challenged Article 35A on ground that it can only have been introduced through Constitutional amendment under Article 368 and not through a Presidential Order under Article 370.
  • They say that 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.
  • One  petition also held that 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.
Apprehensions
  • Government’s new legal pro-activism against Articles 35A or 370 will lead to more alienation in the Valley.
  • In the Valley, the government’s reply on 35A is being seen as paving the way for moves to do away with Article 370 that excludes J&K from most laws enacted by Parliament, except through presidential orders that have the concurrence of the J&K Legislative Assembly
  • Court has also asked the Centre to respond to a petition challenging Article 370.
  • All this has served to strengthen suspicions that the Centre is using the legal route to bring about the changes that it wants
Centre’s stand:
The Centre is likely to take a divergent opinion from that of the Jammu and Kashmir government on Article 35A, on the grounds that it discriminates against women who marry outside the State from applying for jobs or buying property, which is in violation of Article 14 of the Constitution.
 
What critics say?
  • Critics argue that Article 35A goes against the principles of equality and as well as the unity and integrity of India. They argue that it restricts citizens from other States from getting jobs or acquiring property in J&K and is a violation of fundamental rights enshrined under Articles 14, 19 and 21 of the Constitution.
  • Article 35A has also been challenged for protecting certain provisions of the J&K Constitution, which limits the basic right to property if a native woman marries a man who does not possess a certificate of permanent residence.
  • Recently, a Supreme Court Bench has indicated that the validity of Articles 35A and 370 may ultimately be decided by a Constitution Bench.
Section 6 of the Jammu and Kashmir Constitution:
It restricts the basic right of women to marry a man of their choice by not giving the heirs any right to property if the woman marries a man not holding the Permanent Resident Certificate. Her children are denied a permanent resident certificate thereby considering them illegitimate — not given any right to such a woman’s property even if she is a permanent resident of Jammu and Kashmir
 
Why are Political Parties & Separatists opposed to tinkering with 35A?
Fear that it would lead to further erosion of J&K’s autonomy and trigger demographic change in Muslim majority valley. Political parties say Kashmir resolution lies in greater autonomy; separatists fan paranoia against possibility of Hindus ‘flooding’ the valley.
 
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