Law Article and Landmark Judgements
Decoding: Article 35-A
16
Nov
  • Post By: NISHANT SHARMA
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Decoding: Article 35-A

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Article 35-A has become the focal point of debate these days, laying emphasis on the special status of Jammu and Kashmir. While article 35-A still remains unchallenged, A Supreme Court bench is working its way very hard to examine the constitutional validity of this article. So what is article 35-A? Article 35-A is a provision that was incorporated in the constitution giving the J&K legislature a carte blanche to decide who all are to be regarded as the permanent members of the state and to confer them with some special rights and privileges.

In the mid 20th century, the representatives to the Constituent Assembly of J&K requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State. Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State's constituent assembly. This was a "temporary provision" in that its applicability was intended to last till the formulation and adoption of the State's constitution. However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370. Thus the Article has become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir, the latest of which was in October 2015. Under the 1952 Delhi agreement between Abdullah and Nehru, several provisions of the constitution were incorporated in J&K via presidential orders in 1954. Article 35-A was then inserted.

The following article started making headlines after a couple of petitions went down knocking the doors of the Supreme Court. One of them was an NGO “we the citizens”, they challenged the article by contending that the due procedure was not followed to bring the constitutional amendment as laid down under article 368 and that article 35-A was never presented in front of the parliament. The parliamentary route of forming law was bypassed when the President inserted Article 35A into the ConstitutionArticle 368 (i) of the Constitution empowers only Parliament to amend the Constitution. The NGO also contended that the following article is against the spirit of unity in India as it restricts people from other states to get employment or buy property in Jammu and Kashmir thus violating articles 14, 19 and 21. Another petition filed by Jammu and Kashmir native Charu Wali Khanna too has challenged Article 35A for protecting certain provisions of the Jammu and Kashmir Constitution, which restrict the basic right to property if a native woman marries a man not holding a permanent resident certificate. “Her children are denied a permanent resident certificate, thereby considering them illegitimate,”

Along with the legal dimension associated to article 35-A, there are various political perspectives associated with it too, the RSS and BJP are very much opposed to article 35-A as they perceive it as an infringement or obstacle for people from other states to purchase property or look for employment in the state, the PDP government on the other hand is in favor of article 35-A. They perceive it against the popular view of the people who vote for them in every election.

In this legal battle having multidimensional perspectives associated to such a complicated issue, the consequences resulting out if article 35-A is repealed could be drastic, the first threat emanating from such a step is the violence that will rise in the state by the separatist. Separatist leaders have already started urging people for mass agitation if the Supreme Court repeals article35-A also the extension of the fundamental rights and other provisions to J&K through presidential orders will cease to apply only article 1 and 370 would then apply to the state of J&K if article 35-A is repealed Chief Minister Mehbooba Mufti has warned that if Article 35A is removed, there won’t be anyone left to carry the Tricolour in Kashmir; Omar Abdullah has called it the death knell for pro-India politics in the Valley.

Thus solving the issue of article35-A could prove itself to be a mammoth task which if not handled cautiously could create turmoil in the valley, one thing that must be adhered to is discussion, there is a need to have a constructive debate on article 35-A among the political parties, intelligent agencies and the civil society at large. Article35-A is not mere a legal issue but has also become a socioeconomic and political issue, the center needs to take all political parties along for protecting the rights and privileges of the people of the state. Increasing the number of judges in the bench would also lead to more discussion of different perspectives involved in the following matter.

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