Issues Around 35A

Article 35A gives special status to Jammu and Kashmir. It provides the legislature of Jammu and Kashmir with the freedom to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare.  The provision also mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

Controversy with respect to the article
  • Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.
  • Parliament was not consulted when the President incorporated Article 35A into the Indian Constitution through a Presidential Order issued under Article 370.
  • The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.
Why this is challenged?
  • Petitioners are alleging that Article 35A was a violation of the fundamental right of equality under Article 14.
  • The constitutionality of the article is questioned as Parliament was not consulted when the President incorporated Article 35A into the Indian Constitution through a Presidential Order issued under Article 370.
  • Petitioner alleges that Article 35A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens.”
  • Another petitioner Charu Wali Khanna, has challenged Article 35A for protecting certain provisions of the Jammu and Kashmir Constitution which restricts the basic right to property if a native woman marries a man not holding the Permanent Resident Certificate. [The Hindu]

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