LETS KNOW ARTICLE 35A

ARTICLE 35 A

                                                                                BY Dr. SANCHITA RAY

What is Article 35A?

Article 35- 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:^[10]

(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."

History of article 35 A

Maharaja Harisingh, who was the dogra ruler of the princely state of J&K, passed notifications in 1927 and 1932. This imposed a law that defined state subjects and their rights. The law also regulated migrants to the state. J&K joined India through instrument of accession signed by its ruler Hari Singh in October 1947. After J&K’s accession, popular leader Sheikh Abdullah (grandfather of Omar Abdullah) took over reins from Dogra ruler. In 1949, he negotiated J&K’s political relationship with New Delhi, which led to the inclusion ofArticle 370 in the Constitution.

Article 370 guarantees special status to J&K, restricting Union’s legislative powers over three areas: defence, foreign affairs and communications. These provisions were included in Instrument of Accession and were to be under the jurisdiction of the Union.

However, under the 1952 Delhi Agreement which took place between Abdullah and Nehru, several provisions of the Constitution were extended to J&K via presidential order in 1954. Article 35A was inserted then.Bakshi Ghulam Mohammad of the Jammu and Kashmir National Conference was the Prime Minister of Jammu and Kashmir at the time of the 1954 Presidential order.

The ratification of Article 35-A, which was added by Presidential order, by parliament is still pending.

Significance of Article 35A:

·      The Article 35-A of the Constitution of India by itself does not create any right with any person but rather it protects State Subject laws from being evaluated being violative of the right of equality guaranteed under Article 14 of the Constitution of India.

·      Further, if Article 35-A is declared as unconstitutional, it will only allow the Courts to look into the validity of the State Subject Laws.

Negative aspects of this article

1.     This Article allows discrimination between male and female state subjects.

2.     The 1954 order denies property right to a woman who marries a person from outside the state.

3.     This article creates a wall of separation between J&K and the rest of India since no-one from outside the settle can buy immovable property or take up employment in the state.

4.     Children of non-state subjects do not get admission to state colleges.

5.     The high percentage of unemployment amongst West Pakistan refugees due to lack of state subject certificate will make them potential recruit for terrorist organisations

6.      It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste and Scheduled Tribe people who have lived there for generations. The Valmikis who were brought to the state during 1957 were given Permanent Resident Certificates on the condition that they and their future generations could stay in the state only if they continued to be safai-karmacharis (scavengers). And even after six decades of service in the state, their children are safai-karmacharis and they have been denied the right to quit scavenging and choose any other professions.

7.     It gives a free hand to the state government and politicians to discriminate between citizens of India, on an unfair basis and give preferential treatment to some by trampling over others, since the non-residents of the state are debarred from buying properties, getting a government job or voting in the local elections

 Why challenged   ---

According to the petitioners, the provision was unconstitutionally added to the constitution. The constitution  does not allow the president to add or change existing provisions. This can only be done by legislature after such change stands approved within  the parliament by the elected leaders of the country.in the case of Article 35A the provision was added without getting an affirmation from parliament.

A Delhi based NGO named We the Citizens, moved to the Supreme Court for scrapping Article 35A that gives special rights and privileges to the Jammu and Kashmir natives.In another case in SC, two Kashmiri women argued that the state's laws, flowing from 35A, had disenfranchised their children.