Context

  • The government’s reply last month to the Supreme Court, saying that the questions raised in a petition challenging Article 35A require a “larger debate”, has predictably stirred a hornet’s nest in Kashmir.

Article 35A: Current issue

  • The Centre has expressed its reservations in responding to a petition before the Supreme Court that calls for declaring as “unconstitutional” the Article 35A, which grants the Jammu and Kashmir legislature powers to define the state’s “permanent residents”.
  • The Article 35A of the Constitution provides special rights and privileges to the “permanent residents” of J&K.
  • A provision which came into effect in 1954 when the President used the powers conferred on him by Article 370 to introduce the ‘Constitution (Application to Jammu and Kashmir) Order 1954.’
  • Under the said provision, which appears in the Constitution as an “appendix” and not as an amendment to the Article 35, citizens from other parts of the country are prohibited from acquiring immovable property in the J&K, taking up employment under the state government, availing of the state-sponsored scholarship schemes, or settling permanently anywhere in the state.
  • The petition, filed by a Delhi-based NGO, We the citizens, demanded that the Article 35A should be held “unconstitutional” as the President could not have “amended the Constitution” by way of the 1954 order, and that it was only supposed to be a “temporary provision”. The Article was never presented before Parliament, and came into effect immediately.
  • The state of J&K has defended the provision, saying in its affidavit that the Article has become “a permanent feature of the Indian Constitution”.
  • The BJP-RSS aversion to J&K’s special status is well known; one of the RSS’s oft-stated objectives, reiterated by many in the BJP, is the abrogation of Article 370, which stands in the way of the demographic seen as the “permanent solution” to the problems in Kashmir.
  • All this has served to strengthen suspicions that the Centre is using the legal route to bring about the changes that it wants.
  • That Chief Minister Mehbooba Mufti sought to bury the hatchet with a bitter political rival and knocked at the door of National Conference leader Farooq Abdullah for discussions to hammer out a common political position on this matter speaks to the urgency it holds in the Valley.
  • Chief Minister Mufti’s grim cautioning that there will be none left in Kashmir to shoulder the tri-colour if 35A is struck down should be heeded.
  • As also the statement of National Conference leader Omar Abdullah that opening up 35A for debate is nothing less than questioning the accession itself.

Article 35A

  • The Article was added by a 1954 presidential order issued under Article 370, the constitutional provision that mediates the relationship between the Union of India and Kashmir on conditions agreed upon during the state’s 1947 accession.
  • Article 35A empowers the state legislative assembly to specify permanent residents.
  • The 1956 J&K Constitution defines a Permanent Resident as one who, apart from being an Indian citizen, was a state subject on May 14, 1954, or a resident of the state for 10 years, and owns immovable property in the state.
  • Kashmiris are not far off the mark when they argue that had it not been for the steady erosion of Article 370 through the years, the situation in Kashmir would not have reached this pass.
  • In the Valley, the government’s reply on 35A is being seen as paving the way for moves to do away with Article 370 that excludes J&K from most laws enacted by Parliament, except through presidential orders that have the concurrence of the J&K Legislative Assembly.
  • Indeed, the court has also asked the Centre to respond to a petition challenging Article 370.

Article 370

  • The Article 370 of the Indian constitution deals with the provision of certain special powers provided to the state of Jammu and Kashmir.
  • It grants a ‘temporary’ autonomous status to the state of Jammu & Kashmir.
  • The article was a product of Kashmir’s accord to Indian after the Independence.
  • As the things stood, the people of Kashmiri valley (Muslim majority) were apprehensive and blanched about their identity getting lost in a Hindu dominated country.
  • There was also rising pressure from the radical Islamic groups to give autonomy to the government of Jammu & Kashmir.
  • To address the issue, the Indian government gave momentary special status to the state of Jammu and Kashmir under this article.
  • This article has gone through many alterations since its origin in 1947.
  • Article 370 is beyond amendment, repeal or annulment, in as much as the Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal.

Provisions of Article 370

  • Except for Defense, Foreign Affairs, Finance and Communications, the Indian Government needs the State Government’s nod to apply all other laws.
  • The central govt. has no power to impose financial emergency in the state. Emergency can be imposed only on the grounds of internal disturbances and imminent danger from a foreign enemy.
  • Therefore, the state government has the control on how it needs to govern the state without worrying about the consent of the central government.
  • Due to this article, Indian nationals belonging to other states cannot buy land or property in the state of J&K.
  • Woman who marries a person belonging to any other state loses her right to ownership; however, this is a contentious matter
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