Article 35A of the Constitution has become a hot topic of debate all over the country and it sheds light on the plight of the already deteriorating situation in the hostile state of Jammu and Kashmir.
With its stand on opposing the special status accorded to J&K, the Centre–in the opinion of Kashmiri separatist leaders–has threatened the existence of Article 35A.
Recently, a Kashmiri woman who is settled outside the state moved the Supreme Court challenging the constitutionality of Article 35A which has the power to define the status of permanent residents in the state; claiming that it has snatched her succession rights and disenfranchises her children.
In view of her plea, SC had sent notices to both the Centre and the State to take notice of the issue. Calling the matter as covering “sensitive questions”, the court said that the governments should work on legality of the article as a “larger issue of debate.”
Let’s recount our steps on what the Article is about and the situation revolving around the current debate on it through the following pointers:
What is Article 35A?
Before jumping on to Article 35A, let us understand Article 35 of the Constitution, which says, “The Parliament of India shall have the power to make laws prescribing residence as a condition for certain employments or appointments in state or union territory or local authority.”
Article 35A is an overriding provision to Article 35. In simpler terms it delegates power to the state legislature of Jammu & Kashmir to define the ‘permanent residents’ of the state, their special rights and privileges.
As per the constitution of Jammu & Kashmir adopted in 1956; Permanent Residents are ‘All persons born or settled within the state before 1911 or after having lawfully acquired immovable property in the state for not less than 10 years prior to that date. All emigrants to J&K, including the migrants from Pakistan, are considered as State subjects. The descendants of emigrants are defined as subjects for 2 generations.’
This Permanent resident law prohibits all non-permanent residents (i.e. an Indian citizen with a domicile/belonging to any other state) from acquiring immovable property in J&K and they are also disqualified from holding government jobs and acquiring scholarships and other aids.
How is Article 35A different from Article 370?
Article 370 as enshrined in the Indian Constitution accords ‘special or an autonomous status’ to the state of Jammu and Kashmir and restricts the power of the Legislative powers of the Union on defence, foreign affairs and communications. Briefly put, Article 35A was introduced to protect/safeguard the special status accorded to J&K.
CM Mehbooba Mufti’s problem with the abolition of Article 35A
J&K Chief Minister Mehbooba Mufti has been recently quoted as saying that going against the article would mean “weakening the forces who have accepted India. They make efforts to integrate Jammu and Kashmir with respect and dignity. You are (the Centre) weakening them.”
CM Mufti’s statement “They make efforts to integrate Jammu and Kashmir with respect and dignity. You are (the Centre) weakening them.”
She has joined hands with opposition leader Farooq Abdullah to discuss means to protect the special status of J&K.
Her staunch remarks that “no one will be left to shoulder the tricolor in the state” display the fear that lurks in separatist leaders psyche that any change in the existing overtones of the Article will threaten the fate of Kashmiri Muslims settled in the Valley. The point being that the change will let Hindus settle down in the state. Her statements are a loud call to the separatist leaders that Kashmir being a predominantly Muslim inhabited state and a change in Article 35A will open chances of non-residents to settle down in the valley.
How is it discriminatory to women?
The question of Article 35A being discriminatory against women arises from the fact that if any Kashmiri woman marries any non-resident, she will not be qualified to acquire any immovable asset in the state; which means that they are disqualified from their state subject rights as provisioned in the constitution of J&K.
The Supreme Court in its landmark judgement in 2002, in State of J&K vs Dr Susheela Swahney, held that J&K women will not lose their state subject rights if they marry non-residents. However, their children will not be entitled to succession.
In a recent case, two Kashmiri women challenged that J&K’s laws within the preview of Article 35A disenfranchises their children.
Earlier, one NGO questioned the legality of the article in SC on the pretext that Article 35A was never presented in the Parliament and was enforced on President’s orders alone. The article was implemented by the then President Dr Rajendra Prasad in 1954.