Article 35-A has become the focal point of many debates in the recent few
weeks, 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.
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.
How did it come about?
In
the mid-twentieth 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
current discussion
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”, who 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 Constitution. Article 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 was filed by a native of Jammu and Kashmir, challenging
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 with Article
35-A, there are various political perspectives associated with it too. Some
parties are 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; and some are in favour
of Article 35-A.
What
could the consequences be?
In
this legal battle having multidimensional perspectives associated with such a complicated issue, the consequences
resulting out of Article 35-A being repealed could be drastic. The first threat
emanating from such a step is the violence that could rise in the state by the
separatist. Separatist leaders have already started urging people for mass
agitation if the Supreme Court repeals Article 35-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.
Solving
the issue of Article 35-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 a discussion. There is a
need to have a constructive debate on Article 35-A among the political parties,
intelligence agencies and the civil
society at large.
Written
By:
Nishant
Sharma
I Year
Disclaimer: The
views and opinions expressed in the article are those of the author and do not
reflect the views and opinions of the Blog.
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