Stroy Behind Conflict
Article 35A of the constitution is a derivative of Article 370, which allows the Jammu and Kashmir Assembly to define who is a permanent resident, who is eligible to vote and work for the state, who can own land and get admission in colleges. Article 35A is a set of laws those are discriminatory in nature and in conflict with Article 14, 15 and 16 of the Indian constitution, which relates to equality, equality of opportunity in matters of public employment and reservations. It also violates the fundamental rights under Article 19 of the Indian constitution. Article 35A also gives rise to a situation wherein a person who migrated to POK at the time of partition and returned on valid documents is eligible to buy property in the State while the Indian Citizen cannot.article 35A of Indian Constitution – which is connected with Jammu and Kasmir – is in news, over its constitutional validity.
— Asfaq Ahmed Abidi (@AbidiAsfaq) October 30, 2017
Since Article 35A is at variance with the constitutionally sanctioned fundamental rights, therefore a contest and a debate. The validity of Article 35A has been challenged in the Supreme Court of India. The Attorney General is still avoiding the filing of Affidavit in the Supreme Court, whereas the Supreme Court has indicated to put up the case before a 5-Judge constitutional bench and to complete the hearing within six weeks, which is likely to start on August 29, 2017.
Such is the reaction and resistance within the valley that all the divergent political parties, including the Hurriyat, have joined hands in opposing any move that may disturb the present status of Article 35A. National conference working President, the former Chief Minister, Omar Abdullah, tweeted that “if there is the debate on the Article, you will have to debate the accession itself.”
While Article 370 provides special status to Jammu and Kashmir, Article 35A gives powers to the state legislature to define permanent residents of the state and their privileges.
What is Article 35A all about?
Article 35A which does not allow people from outside the state of Jammu & Kashmir to work, settle or own property in the state. The text of Article 35A is given below.
“Saving of laws with respect to permanent residents and their rights. — 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:
(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.”
What Is The Issue?
- The issue came up when a Kashmiri woman, Charu Wali Khan filed a petition to change the constitutional provision as she wanted succession rights in the state though she is settled outside the state.
- This has led to a major controversy in the state.
- The state government filed a counter-petition, but the central government did not do.
- The Central Government has submitted before the Supreme Court that it is ready to discuss on scrapping of Article 35A which does not allow people from outside the state of Jammu & Kashmir to work, settle or own property in the state.
- The NDA Government wants to have a larger debate over the Article 35A challenging the constitutional validity of the clause.
- An NGO, ‘We the Citizens’ have filed a writ petition to strike down Article 35A.
- The ruling party believes that the special status, certain rights and privileges are enjoyed only by the residents of the state which has given rise to alienation and separatist identity to the people of Jammu and Kashmir.
- The provision does not allow people from outside the state of Jammu & Kashmir to work, settle or own property in the state. Scholarships, forms of aid etc are also not allowed to non-residents of the state.
What is Judiciary’s take on Article 35A?
- Supreme Court was ready to have a discussion on scrapping Article 35A while the state government opposed such a move.
- The matter has been referred to the three-judge bench and has been given a six-week deadline to settle the dispute.
- The state BJP leaders are vocal about repealing the Article 35A. As the matter is sub judice, the court’s decision should be binding on all. This stand by the BJP has led to rifts between the BJP and PDP.
- The Supreme Court hinted at referring petitions against Articles 370 and 35A of the Constitution — which give special provisions to Jammu and Kashmir — to a Constitution bench.
- The top court said all petitions that demand scrapping of the articles should be heard together.
The coming weeks shall unfold many odd situations and may spring up much surprise.