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Should Article 35A be scrapped?

Jammu and Kashmir (J&K) was an integral part of the Dominion of India, according to the Instrument of Accession which was signed by Maharaja Hari Singh on October 26, 1947, and subsequently ratified by the Constituent Assembly of J&K.

Article 35A of the Constitution is now being vigorously contested with its constitutional validity being challenged before the Supreme Court. It has managed to create widespread legal and political controversy, despite it not even finding a mention in the regular sequential text of the Constitution. As Article 35A is reflected only in an Appendix of the Constitution, it is often missed by many legal experts.

Explaining Article 35A

Article 35A was born through a Presidential Order, the Constitution (Application to Jammu and Kashmir) Order of 1954. Therefore, it was added to the Constitution without undergoing the procedure for constitutional amendments as laid down in Article 368. The Presidential Order was issued in exercise of the power conferred under Article 370 (1) (d) of the Constitution. Whether such power also extends to inserting a new Article in the Constitution is contentious.

The heading of Article 35A reads: “saving of laws with respect to permanent residents and their rights”. Article 35A declares that any law enacted by the J&K State Legislature on the issues of permanent residence, or special privileges and rights, or imposition of restrictions, or employment, acquisition of immovable property and settlement in the State, or aid from the State government shall not be void on the ground that it is inconsistent with any rights conferred on other citizens of India. In short, such laws granting special rights to permanent residents would not be deemed a violation of the fundamental rights of other citizens.

Classification of citizens

The ‘classification’ created by Article 35A has to be tested on the principle of equality as it treats non-permanent residents of J&K as ‘second-class’ citizens. Such persons are not eligible for employment under the State government and are also debarred from contesting elections.

Meritorious students are denied scholarships and they cannot even seek redress in any court of law. The major sufferers are women who marry outside J&K. Though they retain their Permanent Resident Certificate, their children cannot be permanent residents. This restricts their basic right of inheritance. Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.

This matter requires the active participation of all stakeholders. It is necessary to give confidence to the residents of J&K that any alteration in status quo will not take away their rights but will boost J&K’s prosperity as it will open doors for more investment, resulting in new opportunities. Article 35A, which was incorporated about six decades ago, now requires a relook, especially given that J&K is now a well-established democratic State.

Former Prime Minister Atal Bihari Vajpayee firmly believed that the issues relating to J&K could be resolved following the principles of insaniyat (humanity), jamhooriyat (democracy) and Kashmiriyat (Kashmiri values). Hopefully, this issue will be resolved using the same principles.

Bhupender Yadav is a BJP member of the Rajya Sabha

(Source : https://www.thehindu.com/opinion/op-ed/should-article-35a-be-scrapped/article24763536.ece)

24 Aug 18/Friday.

ARTICLE 35A AGAINST THE SPIRIT OF ONENESS

What is it?

Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche 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 mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

How did it come about?

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.

Why does it matter?

The parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution. Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution. So did the President act outside his jurisdiction? Is Article 35A void because the Nehru government did not place it before Parliament for discussion? A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the President’s powers under Article 370 to ‘modify’ the Constitution. Though the court observes that the President may modify an existing provision in the Constitution under Article 370, the judgment is silent as to whether the President can, without the Parliament’s knowledge, introduce a new Article. This question remains open.

A writ petition filed by NGO We the Citizens challenges the validity of both Article 35A and Article 370. It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of Jammu and Kashmir was never accorded any special status in the Constitution. Article 370 was only a ‘temporary provision’ to help bring normality in Jammu and Kashmir and strengthen democracy in that State, it contends. The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.

The petition said Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution

Beyond Article 35A

Enough discussions are carried out on this subject already, which if viewed holistically; keeping the political vested interests at bay, could give some food for thought to the people of the state of J&K. For long they have suffered or should I say have self-inflicted misery upon them by being blindly led by the self-proclaimed so-called righteous leaders and saviors of Kashmir.

Firstly, what have these so-called saviors of J&K achieved by paralyzing the government machinery in the state for so long? Isolation, poor or no infrastructure, unemployment, poverty, just to name a few. When the entire nation stands united today and the world acknowledges its steadfast growth, J&K is still entangled in the ruins of religious politics, primarily due to the sheer ignorance of its local populace.

Foolishly calling it a jewel, when over the years it is ripped off of its lackluster and it is breathing heavy, would be a question very difficult to answer to, for the coming generations. Trying to think positive, hypothetically lets for once visualize what good amendments in Article 35A could do to this unfortunate state.

Lack of open economy is the biggest deterrent to the growth of the state. Who would be interested in investing in J&K unless they are provided with land-owning rights? Resultantly, it is the people of the state who have been deprived of the benefits that an open economy has brought about in other parts of the country. So, rather than aiding the people of J&K, these provisions have, over the years, impeded the growth of the state which has immense touristic and other potentials.

While the kin’s of the saviors get the best possible education overseas, the rest of the kids have no school/colleges/universities to attend to, just in case, they do exist they do not have a skilled staff.

Even if the child manages to complete his/her degree, does he have a job in hand?

Today youth exchange programmes are in vogue worldwide, but we in J&K choose to stay aloof. Why? We don’t want to share of knowledge base nor do we want competition for our job amongst our own fellow Indians.

This situation has been long exploited by the so-called saviors who find it easy to radicalize unemployed youth in the name of protecting the Kashmiri identity and the state is always in a state of turmoil aided and abetted by Pakistan.

Secondly, all those who came from Pakistan and chose to settle in J&K are still treated as refugees. 80% of these people belong to Scheduled Castes but they do not enjoy any benefit which is otherwise available to similarly placed people elsewhere in the country. A population of around 3,00,000 is excluded from social welfare schemes, scholarships, admission to schools run by the  state government on account of the protective shield that the state of J&K enjoys on account of Article 35A

 

05 Aug 18/Sunday.                 Written by Afsana