What is Article 35A? All You Need to Know
Author: Thamanna Abdul Latheef 27 Aug 2018
There has been a batch of pleas submitted before the apex court challenging the constitutional validity of Article 35A which gives special rights and privileges to people of Jammu and Kashmir. As the supreme court has adjourned the hearing stating that a three-judge bench will look into the matter and will consider whether it has to be referred to a larger bench.
Earlier in Jammu and Kashmir, the lives of millions came to a standstill when a complete shutdown was called by separatists against the legal challenge in the supreme court on the validity of Article 35A. The protesters vowed to defend the constitutional provision that bars people from outside Jammu and Kashmir acquire any immovable property in the state. Even there were minor stone-pelting incidents reported from some parts of the valley as well.
Article 35A was introduced in 1954 by the way of a Constitutional Order by the then President Rajendra Prasad on the advice of the Nehru government.
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. It was added to the Constitution through a presidential order of 1954 with the then J&K government’s concurrence.
The Article 35A, often referred to as the Permanent Residents law, prohibits non-permanent residents from the settlement in the state, acquiring immovable property, government jobs, scholarships, and aid. Some interpret the Article as discriminatory against J&K women, because it disqualifies them from their state subject rights if they married non-permanent residents. But, in a landmark judgment in October 2002, the J&K High Court held that women married to non-permanent residents will not lose their rights.
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. The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.
When was the law introduced?
Article 35A was introduced in 1954 by the way of a Constitutional Order by the then President Rajendra Prasad on the advice of the Nehru government. To make any changes to the constitution or add a new law, the process prescribed by the constitution is to introduce the bill in the Parliament. However, under Article 370(1) (d) the President is allowed make exceptions and modifications with the concurrence of the government of the state for the benefit of the subjects of the state of Jammu and Kashmir.
What is the petition?
The main petition demanding to scrap of the Article 35A was filed before the apex court in 2014 by Delhi-based NGO ‘We the Citizens’. The state government has filed an application to the Supreme Court’s registrar, informing him that it is going to seek an adjournment of the hearing of the petition in view of the “ongoing preparations for the upcoming Panchayat and urban local body elections in the state”.
The provision in Article 35A that grants special rights and privileges to permanent citizens appears in the Constitution as an “appendix”, and not as an amendment. An RSS-linked NGO, which has moved the Supreme Court for scrapping Article 35A that gives special rights and privileges to the Jammu and Kashmir natives, today said it would seek hearing of its plea by a Constitution bench.
Unrest in Kashmir
Life in Kashmir came to a standstill due to a complete shutdown called by separatist against the legal challenge in the Supreme Court on the validity of Article 35A, which bars people from outside Jammu and Kashmir from acquiring any immovable property in the state. Shops and business establishments were closed across the Valley while all kinds of transport remained off the roads due to the strike called. The Joint Resistance Leadership (JRL) had called for a two-day strike — August 5 and August 6 — as Supreme Court was scheduled to hear a PIL challenging the validity of Article 35A.
What is the government’s stand?
The NDA led government has refused to stand by Article 35A. The Attorney General said that the matter is sensitive and required a larger debate. The former chief ministers of J&K Mehbooba Mufti and Farooq Abdullah have warned against the tampering of the law. Mufti even went as far to say that if Article 35A is struck down there will be no one to hold the tricolour in the state.
Have there been cases against this law earlier?
The Supreme Court has struck down three cases, demanding the scrapping of Article 35A, which claimed that it can only be introduced through the process prescribed by Article 368 i.e. by introducing the bill in the parliament. In the 1961 judgement, the court said that the word modification should be given the widest meaning in the context of the constitution.
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