What makes Article 35-A prerequisite for the State of Jammu and Kashmir: A debatable Issue?
DR.JAHANGEER AHMAD BHAT
There is hue and cry regarding Article 35-A that is scheduled to begin hearings this week on the petitions filed against its validity in the supreme court of India.
Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all ‘permanent residents’ are 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.
It has not been mentioned in the main text of Constitution of India but has been mentioned only in Appendix–I THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR ORDER, 1954 to the Constitution of India. It is the Constitution (Application to Jammu and Kashmir) Order of the President of date 14 May 1954 that is placed as Appendix –I to Constitution of India and only that ( Appendix-I) Art 35A is mentioned.
Through 1927 and 1932 notifications, Dogra ruler of the princely state of J&K, Maharaja Hari Singh imposed a law that defined state subjects and their rights. The law also regulated migrants to the state. J&K joined India through instrument of accession signed by its ruler Hari Singh in October 1947. After J&K’s accession, popular leader Sheikh Abdullah took over reins from Dogra ruler.
In 1949, he negotiated J&K’s political relationship with New Delhi, which led to the inclusion of Article 370 in the Constitution. Article 370 guarantees special status to J&K, restricting Union’s legislative powers over three areas: Defence, foreign affairs and communications. However, under the 1952 Delhi Agreement between Abdullah and Nehru, several provisions of the Constitution were extended to J&K via presidential order in 1954. Article 35A was inserted then.
The Jammu and Kashmir’s constitution (Jammu and Kashmir has its own constitution, its own flag and own penal code) was adopted in 1956. It defines a permanent resident as one who was born or settled in the state before May 14, 1954, or who has been a resident of the state for 10 years and has “lawfully acquired” immovable property in the state. All emigrants from Jammu and Kashmir, including those who migrated to Pakistan, are considered state subjects. The descendants of emigrants are considered state subjects for two generations.
Brief History of Jammu and Kashmir
A. During the time of independence, the Maharaja of Kashmir, Hari Singh, was not in favour of joining Pakistan so he signed the Instrument of Accession in October 26 1947 with India.
B. The Line of Control was established in the region in July 1949.
C. Jammu and Kashmir became an Indian state, but both India and Pakistan continued to stake claim on the territory.
D. However, Kashmir wanted to remain an independent state and it was given the special status amid negotiations initiated by SardarVallabhbhai Patel.
Argument against Article 35-A
An NGO, We the Citizens, challenged 35-A in SC in 2014 on grounds that it was illegally added to the constitution as it never put before the parliament.
Another petition filed by Charu Wali Khanna (Supreme Court lawyer) whose argument is that ‘the law discriminates against women -If a Kashmiri woman marries a non-Kashmiri, her children lose their claim over her ancestral property.
Arguments in Support of this article
Maharaja Hari Singh had executed instrument of Accession with certain conditions which later came out in the shape of Article 35-A read with Article 370 of the Constitution of India.
“If Article 35-A or Article 370 is deleted then accession of State of J&K with dominion of India gets precarious, tampering with Article 35A would lead to further erosion of J&K’s autonomy. Various Articles in the Constitution provide special rights to states like Nagaland (Article 371A) and Mizoram (Article 371G) based on historical reasons. Article 35 A protects the demographic status of the Jammu and Kashmir in its prescribed constitutional form.
However, “The fact of the matter is Article 35 (A) is not part of the Constitution of India. It’s a part of the Constitution only applicable to J&K. So there was no requirement of Parliament amending it,”
Parliament as such had no powers to add any article of the Constitution to J&K’s Constitution except to Article 370. “Every Article has been made applicable to J&K through Article 370.
Consequences if Article 35A is removed
The whole population of the valley supports the safeguarding of Article 370 and Article 35A. Any adverse order against the provision, could give vent to a volcanic situation.
If Article 35A is scrapped, the extension of the Fundamental Rights and every other provision to J&K through Presidential Orders will cease to apply. Only Article 1 and Article 370 of the Indian Constitution will then apply to J&K. So, Scrapping the Article 35A is seen as an assault on the special status of the Jammu and Kashmir by the union government.
Different Between Constitutional Article 35A and Article 370
Well, both the Articles of the constitution i.e. Article 35A and Article 370 concerns the State of Jammu and Kashmir, both of them being temporary provisions. The difference is with respect to their subject, where Article 35A protects the rights of the people with respect to employment, property and aids by the state government, Article 370 protects and grants special status to the sovereignty of the state giving power to make a separate set of laws to be applied for its governance.
It is also true that Jammu & Kashmir’s conditional accession to the Indian Dominion on October 26, 1947, when Sheikh Abdullah took over the reins from the Dogra ruler and in 1949; negotiated Jammu & Kashmir’s political relationship with New Delhi that led to the inclusion of Article 370 into the Constitution.
Article 370 under Part XXI guarantees special status to Jammu & Kashmir, restricting the Union’s legislative powers to only three areas — defence, foreign affairs and communications. After Jammu &Kashmir’s Constitution was framed in 1956, it retained the erstwhile Maharaja’s definition of ‘permanent residents’.
(The writer is a teacher. He can be reached at [email protected])
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