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Article 35A and related issues

Topics Covered:

  1. Post-independence consolidation and reorganization within the country.
  2. Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.
  3. Separation of powers between various organs dispute redressal mechanisms and institutions.

 

Article 35A and related issues

 

What to study?

  • For Prelims: Features of Article 35A.
  • For Mains: Controversies and issues associated, is it discriminatory in nature? do we need to scrap Article 35A? other alternatives.

 

Context: The Supreme Court has said that it would take an “in-chamber” decision on listing of a petition challenging the constitutional validity of Article 35A, which provides special rights and privileges to permanent residents of Jammu and Kashmir.

‘In-chamber’ decision refers to a process of decision making where the orders are issued from the Justice’s chambers without a formal court proceeding.

 

Background:

In August last year, the top court adjourned hearing on a batch of petitions challenging Article 35A till January this year, after taking note of submissions of the Centre and the state government that there was a law and order problem in the state.

 

What’s the issue?

A petition has been filed in the Supreme Court which says Article 35A was against the “very spirit of oneness of India” as it created a “class within a class of Indian citizens”. It said 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 Indian Constitution.

 

What is Article 35A?

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.

 

Critical side of Article 35A:

How Article 35A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”?

  • It treats non-permanent residents of J&K as ‘second-class’ citizens.
  • Non-permanent residents of J&K 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.
  • Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.
  • It was inserted unconstitutionally, bypassing Article 368 which empowers only Parliament to amend the Constitution.
  • The laws enacted in pursuance of Article 35A are ultra vires of the fundamental rights conferred by Part III of the Constitution, especially, and not limited to, Articles 14 (right to equality) and 21 (protection of life).

 

Way ahead:

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.

 

Sources: the hindu.

 

Mains Question: The view that Article 35 A is against the “very spirit of oneness of India” as it created a “class within a class of Indian citizens” requires a more nuanced debate. Examine.

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