Article 35-A: Provisions, Issues and Current Status
How section 35-A was incorporated in the constitution? Why it is often alleged that incorporation of Article 35-A in the Constitution not only bypassed Indian parliament, but also created more discrimination? What are its key provisions and their implications?
There are several petitions in the Supreme Court that challenge the constitutional validity of Article 35-A. The pleaders include “Jammu and Kashmir Study Centre (JKSC)”, Delhi-based NGO ‘We the citizens’ etc.
Article 35-A: Text
The text of the Article 35-A 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:
- defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
- conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
- employment under the State Government;
- acquisition of immovable property in the State
- settlement in the State; or
- 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.”
Understanding the Provisions
Article 35A = gives special powers to J & K to decide the ‘permanent residents’ of the state. It allows the Legislature of the state to enact a law in any of the following matters:
- Defining the classes of persons who can be residents of Jammu and Kashmir, or
- Conferring special rights and privileges on the permanent residents or imposing certain restrictions on others with respect to government jobs, acquiring property there, settling in the state and rights to scholarships and government aid.
Such laws have been brought outside judicial review on the grounds of violation of fundamental rights conferred by the Constitution.
Issues with the Provision
The provisions of this Article grant special privileges and rights to its permanent residents, and not to others living in the State of J&K. A major reason for the debate on the issue is the way Article 35 was amended and Article 35A was incorporated through a Presidential Order on May 14, 1954, by the Nehru Government without a discussion in the Parliament, whereas it required a Constitutional amendment. Further arguments against the law are as follows:
- This provision allows the J&K Legislature to mercilessly violate the fundamental rights of the residents of the state who are not permanent residents there but are citizens of India. This is in total contravention of the Fundamental Rights bestowed upon each citizen of the country by the same constitution.
- Presidential order for adding a new article 35A is not just about simple modifications or exceptions of some provisions of the constitution but amounts to amending the constitution by overriding the power of the Parliament and is hence considered unconstitutional.
- In case, this Article would not have been incorporated, the demographic pattern of the State of J&K would have been altered with citizenship rights to1.5 lakh migrants and their subsequent progeny. The same would have perhaps altered the contours of the ongoing J&K problem.
Recently, a Kashmiri woman has also filed a petition before the Supreme Court claiming that this provision has prevented her from claiming succession rights in the state owing to the fact that she stays outside the state.
These are some of the fallouts of giving constitutional status to elements of sub-nationalism by our forefathers. The provision deepens the separate identity that has been granted by Article 370 only for the purpose of meeting the temporary contingency. This creates a political gap between J&K and the rest of India. The issue is sub-judice and is so sensitive that the Chief Minister of the state stated – India would lose support of the state if the special privileges are taken away.