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Monday, February 25, 2019

What is Article 35A?


ARTICLE 35A (1954) was incorporated in the Indian Constitution through a Constitutional amendment even much before the Constitution of J&K came into existence (1956). The Article allows the state of Jammu and Kashmir to grant special privileges and rights to permanent residents but denies rights to several others who too have genuine claims. It debars non-residents of J&K from buying land or property getting a government job or voting in Assembly elections in Jammu and Kashmir.



Why Kashmiris want Article 35A?
Those defending the provision say that Article 35A is part of a historical pact between Kashmir and India allowing the state a special status in India. During the time of accession, it was agreed that the state would be endowed such status. Today, J&K derives its special status from two key constitutional provisions- Article 370 and Article 35A.


Why the controversy over it

A non-governmental organization, We The Citizens, filed a petition in the apex court in 2014 to abolish the law on the grounds that it was “unconstitutional”.


The NGO, in its petition, argued that Article 35A goes against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”.
 



Why are Kashmiris against it?
 
People in Kashmir don’t want Article 35A to be scrapped because of the immunity it provides. Without Article 35A, people from outside the state can settle in the Valley, buy up land and dilute the identity of the local people, they fear.  





The history

When India was under the British rule until 1947, the Jammu and Kashmir was a princely state, under the Dogra rule of Maharaja Hari Singh. The people of the princely states were not British colonial subjects, but, state subjects.

After the then Prime Minister of J-K, Sheikh Abdullah, took over reins from Dogra rule, he negotiated J-K’s disputed political relationship with New Delhi, leading to an agreement between him and Jawaharlal Nehru. The agreement extended Indian citizenship to the “State Subjects”, in the form of Article 370.

Later, in 1954, the then President of India, Rajendra Prasad, on the advice of the Jawaharlal Nehru cabinet, incorporated Article 35-A – defining state’s “permanent residents”.

Now, seven decades later, tensions are simmering in the state ahead of the hearing by Supreme Court tomorrow, and on the other hand, pro-freedom leaders are warning “mass agitation” on any “tinkering” with the constitutional provision.

Scores of protests have been held by the pro-freedom leaders, trade unions, Civil Society groups, and students in the Valley, Jammu, and Ladakh as well over past few weeks.




How did Article 35-A come about?
 
Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of Jawaharlal Nehru and in consultation with the Constituent Assembly 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.