Jammu and Kashmir (J&K) was an integral part of the Dominion of India, according to the Instrument of Accession which was signed by Maharaja Hari Singh on October 26, 1947, and subsequently ratified by the Constituent Assembly of J&K.
Article 35A of the Constitution is now being vigorously contested with its constitutional validity being challenged before the Supreme Court. It has managed to create widespread legal and political controversy, despite it not even finding a mention in the regular sequential text of the Constitution. As Article 35A is reflected only in an Appendix of the Constitution, it is often missed by many legal experts.
Explaining Article 35A
Article 35A was born through a Presidential Order, the Constitution (Application to Jammu and Kashmir) Order of 1954. Therefore, it was added to the Constitution without undergoing the procedure for constitutional amendments as laid down in Article 368. The Presidential Order was issued in exercise of the power conferred under Article 370 (1) (d) of the Constitution. Whether such power also extends to inserting a new Article in the Constitution is contentious.
The heading of Article 35A reads: “saving of laws with respect to permanent residents and their rights”. Article 35A declares that any law enacted by the J&K State Legislature on the issues of permanent residence, or special privileges and rights, or imposition of restrictions, or employment, acquisition of immovable property and settlement in the State, or aid from the State government shall not be void on the ground that it is inconsistent with any rights conferred on other citizens of India. In short, such laws granting special rights to permanent residents would not be deemed a violation of the fundamental rights of other citizens.
Classification of citizens
The ‘classification’ created by Article 35A has to be tested on the principle of equality as it treats non-permanent residents of J&K as ‘second-class’ citizens. Such persons are not eligible for employment under the State government and are also debarred from contesting elections.
Meritorious students are denied scholarships and they cannot even seek redress in any court of law. The major sufferers are women who marry outside J&K. Though they retain their Permanent Resident Certificate, their children cannot be permanent residents. This restricts their basic right of inheritance. Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.
This matter requires the active participation of all stakeholders. It is necessary to give confidence to the residents of J&K that any alteration in status quo will not take away their rights but will boost J&K’s prosperity as it will open doors for more investment, resulting in new opportunities. Article 35A, which was incorporated about six decades ago, now requires a relook, especially given that J&K is now a well-established democratic State.
Former Prime Minister Atal Bihari Vajpayee firmly believed that the issues relating to J&K could be resolved following the principles of insaniyat(humanity), jamhooriyat (democracy) and Kashmiriyat (Kashmiri values). Hopefully, this issue will be resolved using the same principles.
Bhupender Yadav is a BJP member of the Rajya Sabha
24 Aug 18/Friday.