This is a guest blog by Aneesh. No Frills Academy thanks him for his valuable contributions.
Article 35A of the Constitution has become a hot topic of debate in the country and more so in the state of Jammu and Kashmir. In the opinion of Kashmiri separatist leaders, the BJP government, with its stand on opposing the special status accorded to J&K, has threatened the existence of Article 35A.
However, before jumping to conclusions about the nature of the State or the validity of any particular article of the Constitution, an attempt should be made to understand these provisions as they are laid out in their current form in the Indian Constitution.
What are Fundamental Rights?
The Fundamental Rights are defined as basic human freedoms that every Indian citizen has the right to enjoy. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste or gender.
Part-III of the Indian Constitution from Articles 12 to 35 contains fundamental rights.
Articles 35 and 35A
Article 35 of the Constitution says, “The Parliament of India shall have the power to make laws prescribing residence as a condition for certain employments or appointments in state or union territory or local authority.”
Article 35A is an overriding provision to Article 35 and accords special power to Jammu and Kashmir Assembly for framing laws to give privileges and rights to the residents of the state. It entitles the Assembly to define Permanent Residents of Jammu and Kashmir.
Such laws framed exercising the powers under Article 35A cannot be challenged for being in violation of fundamental right to equality of Indian citizens from other states.
Permanent Residents According to Article 35A
Exercising its powers under Article 35A, the Jammu and Kashmir Assembly defined Permanent Resident as a person who was a state subject on May 14, 1954 or who had been a resident of the state for 10 years and has “lawfully acquired immovable property in the state.”
A person who is not a permanent resident of Jammu and Kashmir is not allowed to vote in the state Assembly election or contest election to the state Assembly.
The state also framed laws exercising powers granted by Article 35A to bar an outsider from buying property in or from settling in Jammu and Kashmir. Such a person cannot get a job in the Jammu and Kashmir government.
How is Article 35A different from Article 370?
Article 370 as enshrined in the Indian Constitution accords ‘special or an autonomous status’ to the state of Jammu and Kashmir and restricts the power of the Legislative powers of the Union on defence, foreign affairs and communications. Article 35A was introduced as a fail-safe to protect/safeguard the special status accorded to J&K.
Recently, a Kashmiri woman who is settled outside the state moved the Supreme Court challenging the constitutionality of Article 35A which has the power to define the status of permanent residents in the state; claiming that it has snatched her succession rights and disenfranchises her children.
In view of her plea, SC had sent notices to both the Center and the State to take notice of the issue. Calling the matter as covering “sensitive questions”, the court said that the governments should work on legality of the article as a “larger issue of debate.”
The BJP had mentioned removal of Article 35A in its election manifesto and believes the Article has outlived its utility and the state should be merged with the nation, akin to other states.
Its coalition partner, the PDP and the National Conference (NC), both Valley-based political parties, are averse to its removal. CM Mehbooba Mufti stated that if the status of J&K is tampered with, there would be no one to hold the Indian flag in the state, while Farooq Abdullah warned of mass protests.
The Valley parties are against this proposal solely because they have been propagating that such a step would lead to change of demography in the Valley. Both have joined hands to contest this battle and deny any dilution to its current status.
Discriminatory to Women
The question of Article 35A being discriminatory against women arises from the fact that if any Kashmiri woman marries any non-resident, she will not be qualified to acquire any immovable asset in the state; which means that they are disqualified from their state subject rights as provisioned in the constitution of J&K.
The Supreme Court in its landmark judgement in 2002, in State of J&K vs Dr Susheela Swahney, held that J&K women will not lose their state subject rights if they marry non-residents. However, their children will not be entitled to succession.
In a recent case, two Kashmiri women challenged that J&K’s laws within the preview of Article 35A disenfranchised their children. Earlier, one NGO questioned the legality of the article in SC on the pretext that Article 35A was never presented in the Parliament and was enforced on President’s orders alone. The article was implemented by the then President Dr Rajendra Prasad in 1954.
This is not for the first time that Article 35A has been challenged in the Supreme Court. Similar petitions have been dismissed by the Court thrice in 1956, 1961 and 1970. Repeal of Article 35A – by the Supreme Court verdict or Parliament’s decision – may have some far reaching implications. It would raise the question about the legality of all constitutional orders since 1950. Since Article 35A is a provision in the Constitution of India and not of J&K, the Center’s stand will prove decisive in securing the alliance of Kashmiri residents with the rest of the Union.
Any tampering of laws related to J&K is likely to create turmoil in Kashmir, where the political situation is poor and credibility of the center is quite low. It is inadvisable for the center to debate Article 35A at this time.