Indian Polity - Article 35A of Indian Constitution – Should it be Scrapped?
Article 35A of Indian
Constitution – which is connected with Jammu and Kasmir – is in news, over its
constitutional validity.
While
Article 370 provides special status to Jammu and Kashmir, Article 35A gives
powers to the state legislature to define permanent residents of the state and
their privileges.
What is Article 35A all about?
Article 35A which does not allow people from outside the state
of Jammu & Kashmir to work, settle or own property in the state. The text
of Article 35A is given below.
“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:
(a) defining the classes of persons who are, or shall be,
permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights
and privileges or imposing upon other persons any restrictions as respects—
(i) employment under
the State Government;
(ii) acquisition of
immovable property in the State;
(iii) settlement in
the State; or
(iv) 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.”
Why is Article 35A in news now?
·
The issue came up when a Kashmiri woman, Charu
Wali Khan filed
a petition to change the constitutional provision as she wanted succession
rights in the state though she is settled outside the state.
·
This has led to a major controversy in the state.
·
The state government filed a counter petition, but the central
government did not do.
·
The Central Government has submitted before the Supreme
Court that it is ready
to discuss on scrapping of Article 35A which does not allow people from outside
the state of Jammu & Kashmir to work, settle or own property in the state.
Article 35A and Article 370 – Delicate Issues
·
The NDA Government wants to have a larger debate over the
Article 35A challenging the constitutional validity of the clause.
·
An NGO, ‘We the Citizens’ have filed a writ petition to strike
down Article 35A.
·
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.
·
The provision does not allow people from outside the state of
Jammu & Kashmir to work, settle or own property in the state. Scholarships,
forms of aid etc are also not allowed to non-residents of the state.
(Reference: The Hindu)
What is 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. (Reference: Indian Express)
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.
Arguments in favour of scrapping Article 35A
·
Article 35A was not a part of the original Constitution but was added
later by a presidential order of 1954.
·
Article 370 is another matter of discussion as it is not
permanent but a temporary clause.
·
The definition can be altered by the state government by passing
a law with two third majority.
Amarnath Shrine Board: Protests in 2008
·
To set up temporary shelters and facilities for Hindu pilgrims,
on May 26th 2008, the
Government of India and State government of Jammu and Kashmir signed an
agreement to transfer 99 acres land to the Shri Amarnath Shrine Board.
·
This caused demonstrations and protest in the Kashmir valley
which was the largest in the history of Kashmir with over 500,000 protesters at
a single rally.
·
Environmentalists argued that the transfer of forests land,
would hamper the ecological balance as the construction of roads and dams was
speculated.
·
The demands of the protesters were accepted by the state
government and the transfer of land decision was revoked in July 2008.
·
Hindu groups counter protested to this revocation of law.
·
The convener of the Amarnath Yatra Sangharsh Samiti reacted and
said that the state government was responsible to flaring these religious
sentiments as it had allowed constructing Jama Masjid at Baltal but did not
allow temporary structures for Hindu pilgrims.
·
Despite the protest, the state government did not annul the
revocation of the decision.
·
The frustration amongst the Hindus and Muslims was an attack on
the secularism of the state and a regional divide erupted between the religious
groups leading to loss of many lives and property.
·
An agreement was signed between the group leading the agitation
and Governor of the state appointed panel by making temporary use of 40
hectares of land during the yatra period.
·
Pakistan taking the opportunity of the situation passed a
resolution expressing concerns over the attacks on Muslims and their property
by the Hindus. Indian Foreign Ministry reacted sharply to this by saying that
it was interference in the internal affairs of the country.
Anomalies
of Article 35A and 370
·
Article 370 states that all emigrants from Jammu and Kashmir,
including those who migrated to Pakistan are considered as state subjects.
·
This gave rise to many doubts whether a Pakistani national can
settle in the state of Kashmir and buy property which was denied to many Indian
citizens.
·
The provision is also gender discriminatory as the rules
discriminate against Kashmir women by restricting their choice of partners in
marriage. If the husband does not hold a permanent resident certificate, the
subsequent rights are denied to the children. Hence a female marrying outside
the state of Jammu and Kashmir is denied of property rights in that manner.
(Reference: First Post)
·
Under Article 6 of the Jammu and Kashmir Constitution, Indians
are not conferred state subjects which prevent them from voting, holding jobs,
getting admissions to colleges etc.
·
This amounts to the violation of Article 14, 15, 16, 19 of the
Constitution of India.
·
The Bharatiya Jana Sangh Founder, Shyam Prasad Mukherjee termed
Article 370 as the balkanization of India. He protested vigorously against the
autonomy of the state by saying “Ek desh mein do Vidhan, Do Pradhan and Do
Nishan nahi challenge”
·
It is not surprising that the ruling party is following the
ideals of its founder now.
Jammu and Kashmir – Not only a Political Issue
but also a Security Issue
·
Jammu and Kashmir is not only a political issue but also a
security issue, given the fact that Pakistan
always interferes in the internal matters of India and
the bilateral relations between China and India has been
deteriorating. So ultimately who benefits from this controversy is
the question.
·
Pakistan has agreed to declare Pok as its fifth province and has
decided to bleed India through thousand cuts. It has been
launching terrorist attacks in India since long.
·
China and Pakistan have been friends since long. China was
against declaring Masood Azhar as a global terrorist, denied NSG entry to India
and is also building CPEC passing through India’s territory.
This is hence a sovereignty issue to India.
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