color_logo_transparent.png

Welcome to INDJustice!

Article 35A

Article 35A

By Vidisha Kaul

Article 35A is a controversial issue which was converted into a big debate after the NGO, We the Citizens challenged article 35A in court in year 2014 on the grounds that article 35A was just a temporary provision added by the President in 1954 which was not added in the constitution through amendment under article 368[1]. It was not even once presented in the parliament.

Now, the question arises that what actually article 35A is about?

Article 35A[2] of the constitution empowers Jammu and Kashmir legislature to define state's "permanent residents" and their special rights and privileges. It was added to the constitution through a presidential order of 1954 with the then Jammu and Kashmir government's concurrence.

According to this article the residents of Jammu and Kashmir have some additional privileges which are not given to any other citizen of India and therefore, discriminates against the citizens of the rest of the country. The residents of Jammu and Kashmir can buy property, settle, have government jobs and aids but the non-residential cannot acquire or buy any property of the state, the law prohibits them from permanent settlement in the state or any educational benefits and aid. However, the residents of Jammu and Kashmir can freely move to any state for job opportunities and to settle down and even buy land.

It’s not just that this article has came without any pre described background or so, people faced a lot of problems due to which the President passed the ordinance to assure the residents of Jammu and Kashmir. Jammu and Kashmir was a princely state and the ruler Hari Singh was not inclined to join India after the partition of 1947 as he did not support the political party that was in power which was Congress. So, the ruler refused to join India rather wanted to be recognized as an individual state in its own but soon it did not work as Jammu and Kashmir was attacked by the intruders with the help of Pakistan and they did not have enough man power to protect the state and therefore, the ruler had to take assistance from armed forces of India and in the exchange India made the ruler sign the Instrument Of Accession[3] which made Jammu and Kashmir a province of India. The armed force was successful to throw out the intruders from the state. A new dispute surfaced up as an Instrument of Merger was also supposed to be signed which gives a brief about the policies and article 370 is the only link which Jammu and Kashmir has with India.

Article 35 A which provides special privileges to the people of Jammu and Kashmir comes with its own restrictions with its part for women the discrimination is not only faced by the non residents of Jammu and Kashmir, but the women also face the same discrimination. If the woman is the resident of Jammu and Kashmir and she marries a non- resident man then she will lose the citizenship of Jammu and Kashmir and will lose all the rights and privileges provided to her under this article. The children of these women will also not get the succession rights and are not entitle to any part of their property.

Later, this was challenged in the court and in a landmark judgment in year 2002, it was held that women will not lose their rights and privileges which are given to her under article 35A and will continue to own their property and citizenship i.e. the state subject.

This is a burning issue in today’s era and a highly debated topic to which people want their answers. This became a sensation only after the case filed by the NGO in 2014 to which the verdict of the Supreme Court is still pending. The Kashmiris don’t want this article to be scrapped as this would take away their rights and then the people from the outside could settle down in the valley and they fear that their identity will dilute. The two main political parties of the state Peoples Democratic Party and National Conference are also agitating in favor of article 35A as they don’t want the state to lose its identity and individuality. The other political parties in the union are not tampering with this issue as they fear that this would lead to further disintegration of their independence and autonomy.

India is country which functions according the provisions organized under the Constitution of India and article 35A is a contradiction to it as it came as an ordinance and is still prevailing in its nature. Every citizen of India is considered to be equal in the eyes of law but with the existence of this article the residents of Jammu and Kashmir are kept on a superior level with the provisions which only they can retain. Living in the democratic country, the people have the right to question and demand the rights which they are equally authorized for. The article 35A was introduced by the President to protect the privileges of the people of Jammu and Kashmir from the outsiders back then but now the scenario is not the same, the article then added was to secure and assure the people of the state and the article was added as an ordinance as the President does not have the right to add or change any provisions, only legislature has the right to do it and bring new laws. Therefore, if the existence of article 35A ceases then the people of India will have equal status and no special privileges would be provided to the people of Jammu and Kashmir.

 

 

Consequently, it could be said that yes, Article 35A is not the part of our Constitution, but no doubt it defined the permanent residents and their special rights and powers as in the state of Jammu and Kashmir. But at the same time it was not a permanent change as it was just an ordinance passed by the President at that time and since the ordinance was never being presented in the parliament, it did not get any constitutional validity.  Yet, debates are still being in force and this could only be given a pause by our Government, by letting people know that this article is no more in force, neither it was earlier.


[1] 368. Power of Parliament to amend the Constitution and procedure therefore

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

[2] https://timesofindia.indiatimes.com/india/article-35a-and-its-significance/articleshow/59968712.cms

[3] The Instrument of Accession is a legal document executed by Maharaja Hari Singh, ruler of the princely state of Jammu and Kashmir, on 26 October 1947 By executing this document under the provisions of the Indian Independence Act 1947Maharaja Hari Singh agreed to accede to the Dominion of India.

Censorship

Censorship

Armed Forces (Special Powers) Acts- Necessity or a Misused Power?

Armed Forces (Special Powers) Acts- Necessity or a Misused Power?