Controversy on Article 35A

QUES 1 . By providing a historical background discuss about the controversy regarding Article 35A  of the Constitution.

About Article 35A

Article 35A of the Indian Constitution is an article that empowers the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents.

It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India on 14 May 1954 in accordance with the Article 370 of the Indian Constitution, and with the concurrence of the Government of the State of Jammu and Kashmir.

Background

Following the accession of Jammu and Kashmir to the Indian Union on 26 October 1947,discussions for furthering the relationship between the State and the Union continued, culminating  in the 1952 Delhi Agreement, whereby the governments of the State and the Union agreed that Indian citizenship would be extended to all the residents of the state but the state would be empowered to legislate over the rights and privileges of the state subjects, who would now be called permanent residents.

Following the adoption of the provisions of the Delhi Agreement by the Constituent Assembly of Jammu and Kashmir, the President of India issued The Constitution (Application to Jammu and Kashmir) Order, 1954, through which Indian citizenship was extended to the residents of the state, and simultaneously the Article 35A was inserted into the Indian constitution enabling the State legislature to define the privileges of the permanent residents.

Who is a Permanent Resident (PR) of the state?

The Jammu and Kashmir Constitution, which was adopted on November 17, 1956, defined a Permanent Resident (PR) of the state 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 Jammu and Kashmir state legislature can alter the definition of PR through a law passed with two-thirds majority.

Discriminatory provisions added by Jammu and Kashmir Constituent Assembly

However Jammu and Kashmir Constituent Assembly , incorporated in Jammu and Kashmir Constitution discriminatory provisions like :

1 . Under Section-51 (Qualifications for membership of the Legislature. – A person shall not be qualified to be chosen to fill a seat in the Legislature unless he is a Permanent Resident of the State), Section- 127 (Transitional provisions. – Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as service or post under the State, shall continue in force so far-as consistent with the provisions of this Constitution) and Section-140 (The elections to the Legislative Assembly shall be on the basis of adult suffrage ; that is to say, every person who is a permanent resident of the State and who is not less than Eighteen years of age on such date …), etc.

2 . No person who is not a Permanent Resident of Jammu and Kashmir can own property in Jammu and Kashmir.

3 . No person who is not a Permanent Resident of Jammu and Kashmir can obtain job within Jammu and Kashmir Government.

4 . No person who is not a Permanent Resident of Jammu and Kashmir can join any professional college run by government of Jammu and Kashmir or get any form of government aid out of government funds.

Criticism of Article 35A

The legality issues pointed are:

1 . Article 35A was not added to the Constitution by following the procedure prescribed for amendment of the Constitution of India under Article 368. Article 370 does not anywhere confer on the President legislative or executive powers so vast that he can amend the Constitution or perform the function of Parliament. It has been brought about by the executive organ when actually the right of amendment of the Constitution lies with the legislative organ. Therefore, it is, allegedly, ultra vires the basic structure of the Constitution since it violates the Constitutional procedures established by law.

2 . Besides carrying out many modifications and changes, this order ‘added’ a new “Article 35A” to the Constitution of India. Addition or deletion of an Article amounted to an amendment to the Constitution which could be done only by Parliament as per procedure laid down in Article 368. But, Article 35A was never presented before Parliament. This meant the President had bypassed Parliament in this order to add Article 35A.

3 . The PRC classification created by Article 35A suffers from the violation of Article 14, Equality before the Law. The non-resident Indian citizens cannot have the rights and privileges, same as permanent residents of Jammu and Kashmir.

4 . This also meant that the amending power of Parliament under Article 368 of the Constitution itself was abridged in its application to Jammu and Kashmir, another amendment, without any reference to Parliament. When the President of India does not have legislative powers, he performed the function of Parliament.

The other objections raised are:

1 . It facilitates the violation of the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property, if the woman marries a man not holding PRC. Therefore, her children are not given Permanent Resident Certificate and thereby considering them unfit for inheritance – not given any right to such a woman’s property even if she is a permanent resident.

2 . It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste and Scheduled Tribe people who have lived there for generations. The Valmikis who were brought to the state during 1957 were given Permanent Resident Certificates on the condition that they and their future generations could stay in the state only if they continued to be safai-karmacharis (scavengers). And even after six decades of service in the state, their children are safai-karmacharis and they have been denied the right to quit scavenging and choose any other profession.

3 . The industrial sector & whole private sector suffers due to the property ownership restrictions. Good doctors don’t come to the state for the same reason.

4 . Children of non-state subjects do not get admission to state colleges.

5 . It ruins the status of West Pakistani refugees. Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu and Kashmir, they cannot enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu and Kashmir.

6 . It gives a free hand to the state government and politicians to discriminate between citizens of India, on an unfair basis and give preferential treatment to some by trampling over others, since the non-residents of the state are debarred from buying properties, getting a government job or voting in the local elections.

Support of Article 35A

The state is empowered, both in the Instrument of Accession and the Article 370, to decree exceptions to any extension of the Indian Constitution to the state, other than in the matter of ceded subjects. So Article 35A is seen as an exception allowed by the Article 370, clause(1)(d).

The major political parties of the Kashmir Valley, NC and PDP have remained in support to the preservation and safeguarding of Article 370 and Article 35A. In defense of Article 35-A, the Jammu and Kashmir state Government in November 2015, prepared a report which read, “though Article 368 has been applied to State of Jammu and Kashmir, that would not curtail power of President under Article 370 to amend any provision of Constitution of India in its application to Jammu and Kashmir”.