Article 35A of Indian Constitution, whose validity has being challenged in the Supreme Court and the top court will hear the petition challenging its validity on Monday, 6 August. Article 35A against which separatist groups have been hugely protesting as it bars the outsiders from purchasing land or getting state/ central government jobs in Jammu and Kashmir.
What is Article 35A?
Article 35A of the Indian Constitution is an article that gives special rights to the Jammu and Kashmir's permanent residents that was incorporated into the Constitution in 1954. It was added by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet with the then J&K government's concurrence.
The Article bars people from other states than Jammu and Kashmir from buying or owning immovable assets there, settle permanently or avail themselves of state-sponsored scholarship schemes.
The Jammu and Kashmir Constitution was adopted on November 17, 1956. It had defined a Permanent Resident as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has lawfully acquired immovable property in the state, the article.
The Article 35A has not been mentioned in the main text of the Constitution of India but the Article is located only in Appendix-1 of Indian Constitution within the text of Presidential Order,1954, to the Constitution of India.
What is the controversy?
The provision in the Article 35A that grants special privileges and rights to the Jammu and Kashmir's permanent citizens appears in the Constitution as an “appendix”, and not as an amendment.
According to the NGO, 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.
However, the state government contest the petition, saying the President had the power to incorporate a new provision in the Constitution by way of an order.
Why is Article 35A being debated?
* An NGO, We the Citizens, challenged 35A in SC in 2014 on grounds that it was not added to the Constitution through amendment under Article 368. It was ever presented before Parliament, and came into effect immediately, the group argued.
In another case in SC last year, two Kashmiri women argued that the state's laws, flowing from 35A, had disenfranchised their children.
Why Article 35A is being challenged:
Article 35A is being challenged on two valid grounds:
According to Article 368 of the Indian Constitution, amending power of the Constitution lies exclusively with the Parliament.Thus, the President has no power to amend the Constitution by incorporating a new article. But as Article 35A has been inserted by a Presidential Order so its inception itself is unconstitutional.
Secondly, Article 35A is being challenged for its Gender Discrimination and violation of Article 14 thus infringing the Fundamental rights of citizens.