Article 35A judgment a pivotal time for Jammu & Kashmir

Last Updated: Tue, Aug 07, 2018 15:07 hrs
Kashmiri residents walk past graffiti reading, 'We want freedom

The Supreme Court on Monday adjourned the hearing on petitions challenging the validity of Article 35A. A bench headed by Chief Justice Dipak Misra observed that the apex court will look at whether Article 35A, which gives special status to the state and people of Jammu & Kashmir, violates the “basic structure” of the constitution. The basic structure here refers to fundamental rights, including the right to equality, non-discrimination, liberty, life and dignity which are included in the constitution.

Former Chief Minister Mehbooba Mufti expressed her thoughts stating that there is anxiety and panic in the state as the issue remains to be resolved.

There was a state-wide shutdown called by separatists protesting the petitions that sought to scrap Article 35A. Several representatives of Kashmir-based trade bodies agreed to meet with Joint Resistance Leadership (JRL) and adhere to a strategy to protect the special status.

Background

Article 35A grants the Jammu & Kashmir assembly carte blanche to define who permanent residents of the state are. According to the Jammu & Kashmir constitution, a permanent resident is defined as “a person who was a state subject on May 14, 1954, or who has been residing in the state for a period of 10 years, and has lawfully acquired immovable property in the state”.

These permanent residents are given special rights and privileges – public sector jobs in the state, acquiring property in the state, eligibility for welfare programmes and scholarships.

Article 35A was added to the Indian constitution in 1954 by Presidential order by then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. The provision allows the President to make ‘exceptions and modifications’ to the constitution for the benefit of ‘state subjects’ of Jammu & Kashmir.

A controversial aspect of this provision is that it was done bypassing Parliament which according to Article 368 (i) of the Constitution, can Parliament only amend the constitution.

The Nehru government did not place this provision for debate before Parliament and went straight to the President. Legally, the question as to whether a President can introduce a new article without Parliament remains open.

The Supreme Court in a 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses Article 370; presidential powers to amend the constitution. It observed that the President may modify an existing provision in the Constitution under Article 370. The petitions

Article 35A is now being challenged in the apex court. A Delhi-based NGO named ‘We the Citizens’ filed a petition in 2014 challenging the validity of Article 35A and Article 370.

Their argument – there are four representatives from Kashmir were part of the constituent assembly that helped draft the constitution and the state of Jammu & Kashmir was never given any special status. They argue that Article 370 was not meant to be used to bring permanent amendments, like 35A for example.

The petition cited that 35A was creating a ‘class within a class of Indian citizens’. Under Articles 14, 19 and 21 of the constitution, restricting people from other states from getting employment acquiring property within Jammu & Kashmir is a violation. Another controversial aspect of 35A is it being discriminatory against women.

A petition filed by a Jammu & Kashmir native, Charu Wali Khanna, a lawyer and former member of the National Commission for Women challenged certain provisions of 35A stating it restricts the basic right to property if a native woman of the state marries a man who does not have a permanent resident certificate.

Local response

Kashmiri political parties have warned of closing ranks if there is any attempt to scrap or dilute 35A. This issue has united political parties and local business communities alike. One leader of the Kashmir Economic Alliance was quoted as saying traders will fight tooth and nail to prevent the scraping of 35A. Dr Geer Mohammad Ishaq, General Secretary, Kashmir University Teachers Association, in a column for the Greater Kashmir writes that 35A is a matter of life and death –

Their (political forces) main aim is to convert the existing majority into a minority and camouflage the dominant voice in the state. Repealing this Article would directly mean betraying the leaders and representatives of Jammu and Kashmir with whom Government of India has entered into several agreements from time…

The political situation in the state is not stable as it is after the resignation of Mehbooba Mufti recently. If 35A is scrapped, it will have a profound impact on the political landscape in the state. The PDP-BJP alliance was formed on the basis of protecting 35A. On Friday, more than 300 lawyers from Jammu passed a resolution to strengthen Article 35A.

The separatists will continue to claim the central government as undemocratic as they have done before. This could turn violent as well. For the state as a whole, a lot rests on the apex court’s order on 35A. Dr. Ishaq summed it up in his column -

Cutting across party lines as well as ideological divides all sections of the society need to stand up and speak out to protect and safeguard the state subject laws governing J&K in order to preserve its demography, cultural identity and any semblance of leftover autonomy”.

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