Alternative Learning Systems (Current Affairs)

Article 35 A
Article 35A of the constitution empowers J&K 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 J&K government's concurrence.

 Article 370 guarantees special status to J&K,restricting Union's legislative powers over three
areas: defence, foreign affairs and communications.

 However, under the 1952 Delhi Agreement between Abdullah and Nehru, several provisions of
the Constitution were extended to J&K via presidential order in 1954. Article 35A was inserted
then.

 Permanent residents law prohibits non-permanent residents from permanent settlement in the
state, acquiring immovable property, govt jobs, scholarships and aid.

 It was also interpreted as discriminatory against J&K women. It disqualified them from their
state subject rights if they married non-permanent residents.

 But, in a landmark judgment in October 2002, J&K high court held that women married to non-
permanent residents will not lose their rights. The children of such women don't have
succession rights.

 Those who are deemed "non-residents" under this provision are disallowed from buying
property, settling down, seeking state government jobs, aids, college admissions or scholarships.

The Article

"All persons born or settled within the state before 1911 or after having lawfully acquired immovable
property resident in the state for not less than ten years prior to that date. All emigrants from Jammu
and Kashmir, including those who migrated to Pakistan, are considered state subjects. The descendants
of emigrants are considered state subjects for two generations."

The J&K Constitution, which was adopted on November 17, 1956, defined a Permanent Resident as a
person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years,
and has “lawfully acquired immovable property in the state”. The J&K legislature can only alter the
definition of PR through a law passed by a two-thirds majority. The PR law replicated a state subject law
promulgated by Dogra king Maharaja Hari Singh in 1927 following a strong campaign by Kashmiri
Pandits who were opposed to the hiring of civil servants from Punjab because it affected their
representation in the administration. The Kashmiri-Pandit agitation did not affect the Muslim majority
because the Dogras largely kept the community out of the administration as a matter of policy.

The debate
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 An NGO, We the Citizens, challenged 35A in SC in 2014 on grounds that it was not added to the
Constitution through amendment under Article 368. It was never presented before Parliament,
and came into effect immediately, the group argued.

 In another case in SC last month, two Kashmiri women argued that the state's laws, flowing
from 35A, had disenfranchised their children.

 In 2014, an NGO We the Citizens filed a writ petition seeking the striking down of Article 35A.
While the J&K government filed a counter-affidavit and sought dismissal of the petition, the
central government did not, despite pleas from the state government, especially the PDP.

 Last month, Attorney General K K Venugopal told the bench of Chief Justice J S Khehar and
Justice D Y Chandrachud that the petition raised Constitutional issues after which the court
referred the matter to a three-judge bench and set six weeks for final disposal.

 The Centre’s decision to not come out in support of the J&K government’s position is seen as
part of a series of moves to breach the state’s special status.

 The RSS and the BJP, which is part of the ruling alliance with PDP, are opposed to Article 35A
because it bars non-state subjects from settling and buying property in J&K.

 Sangh groups are unanimous that the only way to permanently end the Kashmir dispute is to
alter its demography by settling people from outside the state, with the right to acquire land
and property, and vote in the assembly elections.

 The RSS claims that “J&K, with its oppressive Muslim majority, has been a headache for our
country…”. The BJP manifesto for the J&K assembly elections had promised “land at cheap rates
for establishment of Sainik colonies in major towns” for retired soldiers.

Question on legality:

 The legality of Article 35A is being challenged on the grounds that it was not added to the
constitution by a constitutional amendment under Article 368. This is a specious argument.

 For the article does not by itself confer any right on J&K state subjects. The Instrument of
Accession signed by the Maharaja of Kashmir in October 1947 specified only three subjects for
accession: foreign affairs, defence and communications.

 In July 1949, Sheikh Abdullah and three colleagues joined the Indian Constituent Assembly and
negotiated over the next five months the future relationship of Kashmir with India. This led to
the adoption of Article 370, which restricted the Union's legislative power over Kashmir to the
three subjects in the Instrument of Accession.

 To extend other provisions of the Indian Constitution, the Union government would have to
issue a Presidential Order to which state government's prior concurrence was necessary.
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Further, this concurrence would have to be upheld by the constituent assembly of Kashmir, so
that the provisions would be reflected in the state's constitution.

 This implied that once Kashmir's constituent assembly framed the state's constitution and
dissolved, there could be no further extension of the Union's legislative power. This was the
core of J&K's autonomy.

 The Article, which was added to the Constitution on 14 May, 1954, through a Presidential order
bypassing the Parliament and appears in the Constitution as an "appendix" and not as an
"amendment", preserves the tenets of the state's Constitution by virtue of being a "clarificatory
provision" – as observed by a division bench of the Jammu and Kashmir High Court in July 2015.

 The power of Parliament to make laws in respect of J&K is circumscribed and it can make laws
for it only where permitted by the state and not otherwise, and that too in accordance with the
mechanism prescribed by Article 370 of the Constitution of India.

Response of the Government

 The NDA government's move to not file an affidavit and seek a "larger debate" and "larger
bench" over Article 35A in response to two recent petitions in the Supreme Court challenging
the Constitutional validity of the clause has expectedly given rise to shrill debates.

 Centre’s position in Supreme Court was criticized by various political parties, when it sought a
“larger debate”.

 How can the Attorney General welcome a debate on Article 35A? Are they ready for a debate on
accession? The special status of J&K is enshrined in the Constitution and it cannot be tampered
with or removed. It is an article of faith