Q. The Constitutional and emotional integration of Jammu and Kashmir presents a complex picture. Analyse the history and contents of Article 35A and the issue surrounding the same.
• What is 35A?
• How did it come about?
• Problems concerning 35 A
What is it?
• 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?
• In 1927, on the plea of the Dogra Pratinidhi Sabha and Kashmiri Pandit Sabha, the Maharaja sanctioned laws to safeguard the interests of his subjects, especially the Dogras of Jammu, and to shield them from domination by elite and affluent non-state subjects, mostly from neighbouring Punjab.
• The enactment of the State Subject Laws had not been sought either by the people of Kashmir or Ladakh, but by the Dogras of Jammu, who had legitimate apprehensions that wealthy businessmen from Punjab will take over Jammu’s economy and dominate social life in ways that the region will cease to be a Dogra homeland.
• Article 35A derives its strength from the State Subject Laws of 1927.
• 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 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.
What is the issue?
• The parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution.
• Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution.
• Is Article 35A void because the Nehru government did not place it before Parliament for discussion?
• A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the President’s powers under Article 370 to ‘modify’ the Constitution.
• Though the court observes that the President may modify an existing provision in the Constitution under Article 370, the judgment is silent as to whether the President can, without the Parliament’s knowledge, introduce a new Article.
• A writ petition filed by NGO We the Citizens challenges the validity of both Article 35A and Article 370.
o It argues that Article 370 was only a ‘temporary provision’ to help bring normality in Jammu and Kashmir and strengthen democracy in that State, it contends.
o The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.
o Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”.
o 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 Constitution.
• A second petition filed by Jammu and Kashmir native Charu Wali Khanna has challenged Article 35A and Section 6 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.
o The provision, which makes such women from the state lose rights over property, also applies to her son.
o Her children are denied a permanent resident certificate thereby considering them illegitimate — not given any right to such a woman’s property even if she is a permanent resident of Jammu and Kashmir
• The petitions challenge Article 35A on three counts: that it discriminates on the basis of gender, that it undermines the rights of West Pakistan refugees, that the presidential order which introduced it is not constitutionally valid.
• It is being argued that repealing Article 35A will give a boost to development in Jammu and Kashmir, particularly Jammu.
o It deliberately ignores economic data, which indicates that the geographical location of the state, a limited market, and manufacturing costs and the volatile law and order situation are the real impediments to the growth of industry in the region.
o It is also factually incorrect that industrialists from across the country cannot set up businesses in J&K; they can lease land (for 99 years) in the state.
• A narrative has been created that removing Article 35A will lead to the integration of Jammu and Kashmir with the rest of India.
o Jammu and Kashmir’s relationship with the nation was inked on October 26, 1947 through the Instrument of Accession
o The contours of this agreement were incorporated into the Indian Constitution as Article 370.
o Art 35 was brought in to safeguard the rights and guarantee the distinct identity of the people of Jammu and Kashmir. Scrapping Article 35A, hence, will shake the very foundation of this relationship.
In January 2017, the former Chief Minister of Jammu and Kashmir, Mehbooba Mufti of PDP has commented that anybody raking up Article 370 & Article 35 A repeatedly, is hurting the soul of Kashmir. Historian Srinath Raghavan argues hat any attempt by Delhi to tamper with the state’s autonomy “is bound to result in a massive backlash.“ Thus, the withdrawal of Article 35A requires generation of trust within citizens of Jammu and Kashmir towards the state and central government.