Relevance and the legality of Article 35A of the Constitution of India

 

lawzmag.comThe history of the Kashmir Valley, the beautiful state Jammu and Kashmir is full of struggle, riots, separation, partition, dominance and governance. This is still continuing with the ongoing hot debate over Article 35A of the Indian Constitution which came into force vide (Application to Jammu & Kashmir) Order 1954 passed by the then president of India. This was driven by his inherent powers under Article 370 of the Indian Constitution. The Article empowers J&K legislature to define the status of its residents as permanent and to confer upon them special rights with regards to immovable property, employment, scholarships, public aid and welfare. Article 35A speaks the following: –

“35-A. Saving of laws with respect to permanent residents and their rights: – Notwithstanding anything contained in this Constitution, no existing law in force in the State of J & K and no law hereafter enacted, by the Legislature of the State: –

(a) defining the classes of a persons who are, or shall be, permanent residents of the State of Jammu & Kashmir; or

(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restriction as respects;

(i) employment under the State Government;

(ii)  acquisition of immovable property in the State;   

(iii) Settlement in the State; or  

(iv) right to Scholarships and such other forms of aid as the State Government may provide,

shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizen of India by any provisions of this part.”

On 26th October, 1947 the State of Jammu & Kashmir was accessed to India through the Instrument of accession between the Maharaja Hari Singh and the Government of India based on certain conditions that, the matter of Defence, External Affairs and Communication would be preserve for the Government of India. In 1949 several negotiations took place with government of India, end result in insertion of a temporary provision (Article 370 of Constitution of India) which continue to hold even 70 years of Independence. Article 370 of Constitution of India gives autonomous status to the state of J&K to make laws, conferring special rights and privileges on the ‘State subjects’ with respect to their Citizenship, emergency power in case of internal disturbance and regard to national flag. The Presidential order of 1954 was a result of the ‘1952 Delhi Agreement’ which insert Article 35A in Indian Constitution. This agreement dealt with many aspects but the most important was of people who had gone to Pakistan on account of communal violence in 1947, return thereafter for permanent settlement in J&K.

The Jammu and Kashmir constitution was adopted in the Year 1956, two years after the above presidential order and it incorporates within itself the rights of permanent resident in its Section 6. Section 6 of the J&K constitution reads as follow: –

  1. Permanent residents: – {1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954-

(a) he was a State Subject of Class I or of Class II; or

(b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date.

(2) Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or of Class II and who having migrated after the first day of March, 1947, to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State.

(3) In this section, the expression “State Subject of Class I or of Class II” shall have the same meaning as in State Notification No. 1-L/84 dated the twentieth April, 1927, read with State Notification No. 13/L dated the twenty-seventh June, 1932.   

The Debate was triggered when BJP had mentioned that Article 370 shall be abrogated in their manifesto of Kashmir election. After this an NGO (We the Citizen) challenged the Article 35A before the supreme court on the ground of its unconstitutionality. The main contention was that, Bill made by President of India by exercising Extraordinary Power conferred by clause 1 of Article 370 of COI, was not presented before the Parliament and came into effect by President Order, 1954 which violates Article 368(1) of COI. Insertion of Article 35A in the Constitution is completely a new amendment, which can’t be done by modification or even amendment of existing constitutional provision by exercising constitutional power under Article 370(1) of Constitution of India.

In a case of Puranlal Lakhanpal v/s The President of India And Ors., Supreme Court held that the word “Modification” under Article 370(1) can’t be limited only to such modification as do not make such “radical transformation” and it also includes amendment.

Another petition filed by Supreme Court lawyer and native of Kashmir (Charu Wali Khanna) on the validity of Article 35A, that it was discriminatory towards women natives of the state and in conflict with Article 14, 15, 16 and 19 of Constitution of India. Petition ignited a debate with regards to status of women in J&K. If a Kashmiri woman marries to a man who is not permanent resident of Kashmir, then she loses right and privilege which she has entitled too. But this not a case with Husband if he holds permanent resident certificate and marry with outside state woman.  Also, this disentitled her children from succession right over her property in the state if husband is not holding permanent resident. With respect to this contention High Court of J&K gave a landmark judgement, State of Jammu & Kashmir v/s Dr. Susheela Sawhney And Ors. in which court held that women marring a non-permanent resident will not lose the status of permanent resident of the state of J&K but their child would.

Conclusion

Article 35A of the Constitution is derivative of Article 370 of Constitution which gives power to state of J&K to define its permanent citizens, who has the right to vote, who can own land in state of J&K and who can get employment. But this article goes against the spirit of constitution by firstly- it was incorporated in the constitution by the president exercising their extraordinary powers which bypass the parliament and secondly, it is gender discriminatory. After independence, six and a half decade passed away and still matter is of utmost public importance is pending for decision. At present, Supreme Court club the Charu Wali Khanna petition with NGO case and to discuss to constitutionality of matter before five judges bench of Supreme Court. We sincerely hope that the Supreme Court takes into account the discriminatory provision and make good the violations of the right of the people and this would in the end decide the fate of Kashmir Valley.

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