How Should Government React Against Article 35A of Indian Constitution?

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provisions of article 35A

Introduction

  • Now a days, Article 35A of Indian Constitution has ratcheted pressure on government and has become a burning topic of debate.
  • Recently a petition has filed by two Kashmiris women in Supreme Court, who have been denied the right of property in the state by virtue of article 35A.
  • In its response, Supreme Court has sent notices to both state and central government to address her plea.
  • As a response, in a recent hearing on July 2017, Attorney General K K Venugopal told Supreme Court that Central government is not keen on filing an affidavit in this case. Instead, central government wants a bigger debate on the subject of article 35A.
  • Following this, SC of India referred this matter to three-judge bench and has set six week time for final disposal of this case.
  • Earlier before this case, a NGO named “We the Citizen” has also filed writ petition in SC against article 35A. They argued that article 35A was not added to Indian Constitution by following the procedure prescribed under article 368.

Background of addition of article 35A in Indian Constituion

  • Current provisions in article 35A dates back to 1927 when Dogras of Kashmir approached Maharaja Hari Singh fearing that arrival of people from Punjab will lead to their control in government services. These fears lead to issuance of notifications by Hari Singh in 1927 and 1932 which defined state subjects and their rights.
  • On 17 May 1954, Dr. Rajendra Prasad, President of newly formed India issued presidential order under article 370 which provides a framework for divisions of power between state and central government.
  • When a separate Constitution of Jammu & Kashmir was framed in 1956, it retained the provisions of permanent resident law which was mentioned in 1927 and 1932 notifications. A permanent resident in Jammu & Kashmir was defined as – “ a person born or settled in J&K before 1911 or has been resident in the state for 10 years after lawfully acquiring property in state”.

What is article 35A?

  • Article 35A was added to Indian Constitution through a presidential order of 1954. It is mentioned in Appendix II of Indian Constitution.
  • Article 35A allows J&K legislature to define the list of “Permanent resident” of the state who are eligible to vote, acquiring property, work for state government, secure admission in state university and availing scholarship etc.
  • A woman from outside state shall become a permanent resident of J&K if she marries a male permanent resident of J&K but her daughter who is born state subject will lose the right of property on marrying an outsider of her choice.
  • Permanent resident law mentioned in article 35A prohibits non-permanent residents from permanent settlement in the state, acquiring state’s immovable property, state’s government jobs and state’s scholarships etc.

Arguments against the Article 35A

  • Article 35A violates the constitutional procedures prescribed in article 368 by law as legislation. Amendment of Constitution is sole responsibility of Parliament and not that of executive. It was added into constitution of India by presidential order of 1954.
  • It violates the fundamental rights of equality before the law which is guaranteed by article 14. Permanent resident law mentioned under article 35A violates the fundamental rights of equality as non-permanent residents of J&K cannot have rights and privileges as same as the residents of J&K.
  • Article 35A provides succession rights to the children of men who have married to non-permanent women residents but at the same time it does not provide any succession rights to children of women who have married to non-permanent men residents.
  • Hence it violates the rights of women to marry a man of her choice.
  • Due to provisions of article 35A, social development are lagging in state as industrialists and entrepreneurs are not willing to invest in the state due to restrictions of acquiring land and property etc. in J&K.

Arguments in favour of Article 35A

  • There are various articles in Indian Constitution such as article 371 and 371A-1 which provide some special rights to various states of the country. However article 370 is a part of original Constitution and article 35A derives its source from it.
  • Article 35A does not extend something new to J&K. It clarifies only existing relationship between J&K government and central government.
  • When India got independence, it was responsibility of current government to protect demographic status of J&K and hence article 35A was introduced under article 370.
  • In last 65 years, the President of India has issued 41 presidential orders that are applicable to various provisions of J&K Constitution. Those orders have replaced elected Sadr-e-Riyasat by a Governer appointed by Central government and have also replaced Prime Minister of the state by Chief Minister.
  • If SC orders that article 35A violates the norms of Indian Constitution then such judgment will have to be made applicable to all the Constitutional presidential orders from 1950 to till date.

Conclusion

Jammu & Kashmir is an integral part of Union of India. When India got independence, then at that time J&K needed protection from dominion of Pakistan. By keeping its historical and geographical factors in mind, political leaders of that time provided special status to J&K through article 35A. But we should keep in mind that present controversies on article 35A will not only touch the sentiments of Kashmiris people but it will also create a feeling of hatred against India in their mind. If SC orders to end the provisions mentioned in article 35A, then it would destroy present relationship between J&K government and central government. It may create the feeling of insecurity in Kashmiris and would encourage them to protest violently against Union of India. This decision would also encourage them to raise their voice more strongly for separate nation. So, SC as a custodian of Constitution needs to think properly before giving their decision.

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