OPINION

What is Article 35-A, why does it matter?

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By: Shabir Ahmad

Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.

The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.

So Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.The provisions of Article 35A give special rights to the "permanent residents" of the state. It empowers the state legislature to define permanent residents and then give them special treatment, privileges and rights. This special treatment is with respect to 'employment with the state government, acquisition of immovable property in the state, settlement in the state, or right to scholarships and such other forms of aid as the state government may provide'.

Prior to 1947, Jammu and Kashmir was a princely state under the British Paramountcy. The people of the princely states were "state subjects", not British colonial subjects. In the case of Jammu and Kashmir, the political movements in the state in the early 20th century led to the emergence of "hereditary state subject" as a political identity for the State's peoples, and the legal provisions for the recognition of the status were enacted by the Maharaja of Jammu and Kashmir between 1912 and 1932. The 1927 Hereditary State Subject Order, passed by the Maharaja due to the pressure of the Pandit community which had launched a "Kashmir for the Kashmiri" movement, granted to the state subjects the right to government office and the right to land use and ownership, which were not available to non-state subjects.

Following the accession of Jammu and Kashmir to the Indian Union on 26 October 1947, The Maharaja ceded control over defence, external affairs and communications (the 'ceded subjects') to the Government of India . The Article 370 of the Constitution of India and the concomitant Constitutional Order of 1950 formalised this relationship. 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.

The parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution. Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution. So did the President act outside his jurisdiction? Is Article 35A void because the Nehru government did not place it before Parliament for discussion? A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the President’s powers under Article 370 to ‘modify’ the Constitution. Though the court observes that the President may modify an existing provision in the Constitution under Article 370, the judgment is silent as to whether the President can, without the Parliament’s knowledge, introduce a new Article. This question remains open.

The debate with respect to the constitutionality of Article 35A started after an NGO 'We The Citizens' filed a petition in the Supreme Court in 2014, saying the provision was only supposed to be a temporary one. In July 2015, an RSS-backed think-tank called the Jammu & Kashmir Study Centre first came up with the idea to challenge Article 35A in the Supreme Court. A petition was filed in the Delhi High Court against the Article. Later, it was also challenged in the Supreme Court.

The legality issues pointed are:

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.

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.

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.

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 main objections raised are:

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.

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 armacharis (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.

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.

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

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.

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.

The Union government has rightly parted ways with the state government in front of the Supreme Court. The Centre expressed its reservations in responding to the NGO's petition before the apex court. This means that if Article 35A is struck down, there will be more legal parity between a citizen of India in Jammu and Kashmir and a citizen of India in any other state. Even from a political point, the existence of such special legal provisions for Jammu and Kashmir is indirectly an acknowledgment in front of the international community that the state is a disputed territory and therefore, it has a special status within the country.

The author is Social Activist and writes on various contemporary issues of national and international import and can be reached at:sahilshabir@rocketmail.com

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