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Article 35A

Fiddling with J&K’s Special Status Catastrophic

Dar Javed

There are debates on attempts to abolish article 35-A . Article 35A deals with the sensitive issue of who may be permitted to own immovable property in Jammu and Kashmir. All political parties in Jammu and Kashmir warns of dire consequences if article 35 is tankered with. There are debates ,conferences ,discussions going on this crucial issue. People irrespective of political affiliations are united in their fight against the dilution of 35-A. Everywhere there,  all vehicles be it small auto rickshaws carry a message --- SAVE ART 35A SAVE RIGHTS OF STATE SUBJECTS. As the date of  hearing is approaching ,peaceful protests against any move to abrogate 35 A gain momentum .

A  batch of petitions before the Supreme Court challenging the constitutional validity of Article 35A of the Constitution – which gives the Jammu and Kashmir Assembly legal sanction to provide special privileges to “permanent residents” – has once again become a political flash point and re-opened the debate in relation to the special status enjoyed by the state by virtue of Article 370 of the Constitution.

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.”

Why is Article 35A Debated?

• An NGO, We the Citizens, challenged 35A in Supreme Court  in 2014 on grounds that it was not added to the
  Constitution through amendment under Article 368.

• It was never presented before Parliament, and the parliamentary route of lawmaking was bypassed.

• It argues that four representatives from Kashmir were part of the Constituent Assembly involved in
  the drafting of the Constitution and J&K was never accorded any special status in the Constitution.

• Article 370 was only a ‘temporary provision’ to bring normality in Jammu and Kashmir and strengthen democracy in the State.

• Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of
  Indian citizens”.

• Restricting citizens from other States from getting employment or buying property within Jammu
  and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution

• In another case in SC, Article 35A 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.

• The Supreme Court has indicated that the validity of Articles 35A and 370 may be decided by a Constitution Bench.

Arguments in Support of this article.

• Tinkering with Article 35A would lead to further erosion of J&K's autonomy.

• Various Articles in the Constitution provide special rights to states like Nagaland (Article 371A) and
  Mizoram (Article 371G) based on historical reasons.

• Article 35 A protects the demographic status of the Jammu and Kashmir in its prescribed constitutional form.

• The major political parties of the Kashmir Valley, NC and PDP support the safeguarding of Article
  370 and Article 35A.

• In the last 70 years, demography of Kashmir Valley has remained unchanged even as Hindu majority in Jammu and Buddhists in Ladakh have rights to buy property and settle in the Valley [Editorial InsightsOnIndia]

Consequences if 35A is removed.

• will unite all political -Mainstream PDP Nc and Separatist groups ,thereby chance of simmering and boiling of valley will get high

• If Article 35A is scrapped, the extension of the Fundamental Rights and every other provision to J&K through Presidential Orders will cease to apply.
  

As the hearing is nearer, all kashmir centric parties unite to protect 35A. Former  Chief Minister Mehbooba Mufti has warned, in well-chosen words, that no one will be left in the state to hold the national flag if Article 35A is tinkered with. National Conference leader Omar Abdullah has also added his voice to the controversy, saying that questioning the validity of Article 35A would be as good as challenging the accession of J&K.

Last but not least ,people of Jammu Kashmir have made great  sacrifices for larger goals ,we need to safeguard what we already have .

Dar Javed is a postgraduate in Craft Management ,design and Entrepreneurship and is working as a design trainer in European commission sponsored project PIE ,he is also an internee at Delhi based Commitment to Kashmir (Ctok).