UPSC MAINS 2019: What is Article 35A and why does it matter?

What is Article 35A and why does it matter

 

Topic: What is Article 35A and why does it matter?

Topic in Syllabus: General Studies Paper 2 : Indian Polity

 

What is Article 35A and why does it matter

What is Article 35A?

  • Article 35A is a provision in the Indian constitution that grants the Jammu and Kashmir assembly complete freedom to decide or define the permanent residents of the State and grant them special privileges and rights including government jobs, scholarship and other government welfare aids.
  • A Permanent Resident of the state has been defined as a person who was a subject of the state on May 14, 1954, or a person who has been residing in the state for a period of 10 years, and has “acquired immovable property in the state” under the ambit of law.
  • This provision also states that no act by the legislature made under Article 35A could be challenged for defying the Constitution or any other law of the land.

 

Background:

  • 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.
  • 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.
  • So Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.

 

More about on Article 35 A:

“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.”

 

Controversy:

  • Many believe that this article was incorporated unconstitutionally, dodging Article 368 which emancipates only the Parliament to amend the constitution.
  • Others consider Article 35 A against the “very spirit of oneness of India” as it created a “class within a class of Indian citizens” – by treating non-permanent residents of J&K as ‘second class’ citizens.
  • Restricting citizens from other States from getting employment or buying property within J&K is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.
  • There is also probable discrimination on the basis of gender – since it denies property rights to children of women who marry those from outside the state.

 

Arguments in support of 35A:

  • Article 35A safeguards the uniqueness of the J&K. Even Himachal Pradesh and Uttarakhand have the laws which state no outsider can buy a land.
  • This was part of the deal struck between the Maharaja of Kashmir, Hari Singh, and the republic of India to protect the privileges of Kashmiri residents from outsiders.
  • Striking Article 35A down will have various consequences on other constitutional amendments contained in the 1954 Presidential Order. And this can erode the autonomy of J&K.
  • Striking down Article 35A would allow people from outside J&K to settle in the state and acquire land and property, and the right to vote, thus altering the demography of the state.

 

Arguments against scrapping Article 35A

  • Scrapping the Article 35A is seen as an assault on the special status of the Jammu and Kashmir by the state government.
  • Article 35A cannot be challenged on the ground that they affect the fundamental rights of the other Indian Citizens.
  • The rights of the state legislature are not unlimited and can be given only in the case of – Employment, Property, Settlement and Scholarship.
  • Kashmiris are apprehensive that such a move would be dominated by the Hindu nationalist groups.
  • Former chief minister Omar Abdullah also stated that this would create a bigger agitation as was witnessed in 2008 over the transfer of land to the Amarnath Shrine Board.

 

Delhi Agreement 1952 and Article 35A

The Delhi Agreement 1952 (announced on 24 July 1954) regarding the constitutional relationship between the Indian and Kashmir held between Prime Minister Nehru and Sheikh Abdullah. The Delhi agreement established constitutional status to the State of Jammu & Kashmir with Indian Government which became the part of the federal structure of Indian Constitution.

 

The Delhi Agreement states:

  • The Government of India agreed that while the residuary powers of legislature vested in the Centre in respect of all States other than Jammu and Kashmir, in the case of the latter, they vested in the State itself.
  • It was agreed that persons domiciled in Jammu and Kashmir shall be regarded as citizens of India, but the State Legislature was empowered to make laws for conferring special rights and privileges on the State’s subjects.
  • As the President of India commands the same respect in the State as he does in other units of India, Articles 52 to 62 of the Constitution relating to him should be applicable to the State.
  • The Union Government agreed that the State should have its own flag in addition to the Union flag, but it was agreed by the State Government that the State flag would not be a rival of the Union flag.
  • The Sadar-i-Riyasat, equivalent to the Governor of other States, will be elected by the State Legislature itself instead of being nominated by the Union government and the President of India.
  • In view of the peculiar position in which the State was placed, in particular Sheikh Abdullah’s land reforms programme, the Fundamental Rights enshrined in the Constitution could not be made applicable to the State.
  • With regard to the jurisdiction of the Supreme Court of India, it was accepted that for the time being, owing to the existence of the Board of Judicial Advisers in the State, the Supreme Court should have only appellate jurisdiction.

 

Judiciary’s take on Article 35A:

  • Supreme Court was ready to have a discussion on scrapping Article 35A while the state government opposed such a move.
  • The matter has been referred to three judge bench and has been given a six-week deadline to settle the dispute.
  • The state BJP leaders are vocal about repealing the Article 35A. As the matter is sub judice, the court’s decision should be binding on all. This stand by the BJP has led to rifts between the BJP and PDP.
  • The Supreme Court hinted at referring petitions against Articles 370 and 35A of the Constitution — which give special provisions to Jammu and Kashmir — to a Constitution bench.
  • The top court said all petitions that demand scrapping of the articles should be heard together

 

Issues Involved:

  • The major political parties of the Kashmir Valley, NC and PDP have remained in support to the preservation and safeguarding of Article 370 and Article 35A.
  • In defense of Article 35-A, the Jammu and Kashmir state Government in November 2015, prepared a report which read, “though Article 368 has been applied to State of Jammu and Kashmir, that would not curtail power of President under Article 370 to amend any provision of Constitution of India in its application to Jammu and Kashmir”.
  • The constitutional validity of Article 35A is, therefore, well established as it protects legislation passed by the J&K legislature relating to benefits to Permanent Residents from challenge on the ground of violation of Fundamental Rights, while extending the chapter on Fundamental Rights of the Indian Constitution to J&K. Thus this provision is in the nature of a proviso to the extension of the chapter on Fundamental Rights in the Indian Constitution to J&K. In fact, the Fundamental Rights were extended to J&K through the 1954 Presidential Order.
  • The ruling party believes that the special status, certain rights and privileges are enjoyed only by the residents of the state which has given rise to alienation and separatist identity to the people of Jammu and Kashmir.
  • Scrapping the Article 35A is seen as an assault on the special status of the Jammu and Kashmir by the state government.
  • Article 35A cannot be challenged on the ground that they affect the fundamental rights of the other Indian Citizens.
  • The rights of the state legislature are not unlimited and can be given only in the case of – Employment, Property, Settlement and Scholarship.
  • Former chief minister Omar Abdullah also stated that this would create a bigger agitation as was witnessed in 2008 over the transfer of land to the Amarnath Shrine Board.
  • Any alteration to Article 35A may leave the government at the Centre with a hot mess in its hands, damaging the vestiges of goodwill that ordinary Kashmiris may still have towards the Union of India.
  • Any attempt to undermine, or dilute, these principles, already enshrined in the Constitution and wrenched after many decades of violence and bloodshed, can only serve to perpetuate the current cycle of unrest. In any case, it won’t act as a deterrent to terrorism in the valley.

 

Way Forward:

  • The matter is sensitive and requires participation of various stakeholders and requires a larger debate.
  • This issue requires separate constitutional bench to take a stand about the article.
  • Though article 35A need relook, any further alteration should not take away the uniqueness of J&K.
  • Should Article 35A be removed, it must be removed as an expression of the will of the people, through a political process which includes the people of J&K in the discussion.

 

Sample Question:

Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”, and violation of fundamental rights under Articles 14, 19 and 21 of the Constitution. Critically examine should it be scrapped or not?


What is Article 35A and why does it matter - Info graphics - Feb27th