Debate on Article 35A

Map of Jammu and Kashmir

The Central Government has submitted before the Supreme Court that it is ready to discuss on scrapping of Article 35A which does not allow people from outside the state of Jammu & Kashmir to work, settle or own property in the state. This has led into a major controversy in the state. The special status of the state of Jammu & Kashmir has been granted by the Constitution of India.

What?

  • The NDA Government wants to have a larger debate over the Article 35A challenging the constitutional validity of the clause.
  • An NGO, ‘We the Citizens’ have filed a write petition to strike Article 35A.
  • Even though the state government filed a counter petition, the central government did not do. This gave rise to doubt that the BJP led government is looking forward to end the special status of the state.
  • The ruling party believes that the special status, certain rights and privileges are enjoyed only by the residents of the state which has given rise to alienation and separatist identity to the people of Jammu and Kashmir.
  • The issue came up when a Kashmiri woman, Charu Wali Khan filed a petition to change the constitutional provision as she wanted succession rights in the state though she is settled outside the state.
  • It does not allow people from outside the state of Jammu & Kashmir to work, settle or own property in the state. Scholarships, forms of aid etc are also not allowed to non residents of the state.
  • The matter has been referred to three judge bench and has been given six week deadline to settle the dispute.
  • The state BJP leaders are vocal about repealing the Article 35A. As the matter is sub judice, the court’s decision should be binding on all. This stand by the BJP has led to rifts between the BJP and PDP.
  • Due to this rift, Supreme Court was ready to have a discussion on scrapping Article 35A while the state government opposed such a move.

Why?

  • Scrapping the Article 35A is seen as an assault on the special status of the Jammu and Kashmir by the state government.
  • Article 35A was not a part of the original Constitution but was added later by a presidential order of 1954.
  • Article 370 is another matter of discussion as it is not permanent but a temporary clause.
  • Article 35A cannot be challenged on the ground that they affect the fundamental rights of the other Indian Citizens.
  • But the rights of the state legislature is not unlimited and can be given only in the case of
    • Employment
    • Property
    • Settlement
    • Scholarship
  • The definition can be altered by the state government by passing a law with two third majority.
  • Kashmiris are apprehensive that such a move would be dominated by the Hindu nationalist groups.
  • Former chief minister Omar Abdullah also stated that this would create a bigger agitation as was witnessed in 2008 over the transfer of land to the Amarnath Shrine Board.

When?

  • To set up temporary shelters and facilities for Hindu pilgrims, on May 26th 2008, the Government of India and State government of Jammu and Kashmir signed an agreement to transfer 99 acres land to the Shri Amarnath Shrine Board.
  • This caused demonstrations and protest in the Kashmir valley which was the largest in the history of Kashmir with over 500,000 protesters at a single rally.
  • Environmentalists argued that the transfer of forests land, would hamper the ecological balance as construction of roads and dams was speculated.
  • The demands of the protesters were accepted by the state government and the transfer of land decision was revoked on July 2008.
  • Hindu groups counter protested to this revocation of law.
  • The convener of the Amarnath Yatra Sangharsh Samiti reacted and said that the state government was responsible to flaring these religious sentiments as it had allowed to construct Jama Masjid at Baltal but did not allow temporary structures for Hindu pilgrims.
  • Despite the protest, the state government did not annul the revocation of the decision.
  • The frustration amongst the Hindus and Muslims was an attack on the secularism of the state and a regional divide erupted between the religious groups leading to loss of many lives and property.
  • An agreement was signed between the group leading the agitation and Governor of the sate appointed panel by making temporary use of 40 hectares of land during the yatra period.
  • Pakistan taking opportunity of the situation passed a resolution expressing concerns over the attacks on Muslims and their property by the Hindus. Indian Foreign Ministry reacted sharply to this by saying that it was interference in the internal affairs of the country.

Where?

  • Article 370 states that all emigrants from Jammu and Kashmir, including those who migrated to Pakistan are considered as state subjects.
  • This gave rise to many doubts whether a Pakistani national can settle in the state of Kashmir and buy property which was denied to many Indian citizens.
  • The provision is also gender discriminatory as the rules discriminate against Kashmir women by restricting their choice of partners in marriage. If the husband does not hold permanent resident certificate, the subsequent rights are denied to the children. Hence a female marrying outside the state of Jammu and Kashmir is denied of property rights in that manner.
  • Under Article 6 of the Jammu and Kashmir Constitution, Indians are not conferred state subjects which prevents them from voting, holding jobs, getting admissions to colleges etc.
  • This amounts to violation of Article 14, 15, 16, 19 of the Constitution of India.
  • The Bharatiya Jana Sangh Founder, Shyam Prasad Mukherjee termed Article 370 as balkanization of India. He protested vigorously against the autonomy of the sate by saying “ Ek desh mein do Vidhan , Do Pradhan and Do Nishan nahi challenge”
  • It is not surprising that the ruling party is following the ideals of its founder now.

Who?

  • Jammu and Kashmir is not only a political issue but also a security issue, given the fact that Pakistan always interferes in the internal matters of India and the bilateral relations between China and India has been deterioting. So ultimately who benefits from this controversy is the question.
  • Pakistan has agreed to declare Pok as its fifth province and has decided to bleed India through thousand cuts. It has been launching terrorist attacks in India since long.
  • China and Pakistan has been friends since long. China has denied declaring Masood Azhar as global terrorist, denied NSG entry to India and also building CPEC passing through India’s territory. This is hence a sovereignty issue to India.
  • As Indian army eliminates terrorist, time has come for political outreach too.
  • There should be deliberation o the validity of Article 370 now.
  • Moreover by challenging Article 35A, the separatists are not targeted because their agenda is different and it is totally secessionist.
  • Hence the centre cannot afford to ignore these situations and should work on it.

How?

  • If the article 35A is scrapped, it is very complicated and challenging as all the 41 subsequent Presidential orders will then become susceptible to legal challenges.
  • These subsequent orders have been extended 94 out of 97 entries in the Union list to the state as well as applied 260 articles of the Indian Constitution to the state.
  • Moreover Article 35A is only a clarificatory provision and itself does not confer any special power
  • The order has also been used to override the provisions of the State Constitution.

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