What is Article 35-A
Article 35A is a provision incorporated into the Constitution of India giving the legislature of Jammu and Kashmir the power to define the ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, settlement in the state, scholarships and other public aid and welfare.
Immunity from invalidation:
Article 35-A says:
“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 Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:
(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions 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 citizens of India by any provision of this part.”
To put it simply, it says that the laws made by the state regarding settlement, acquisition of property and employment will prevail and could not be struck down on the ground that they violate the fundamental rights.
Similar provision in Pakistan Administered Kashmir
Under Article 4 of the AJK Alienation of Land Act 1995, no Pakistani can buy land in the PAK whereas
Kashmiris can buy land in Pakistan and even can contest elections.
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.
Legal contestation about 35-A?
The people who challenged 35-A in the Supreme Court argue that the parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution. Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution.
A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the President’s powers under Article 370 to ‘modify’ the Constitution. Though the court observes that the President may modify an existing provision in the Constitution under Article 370, the judgment is silent as to whether the President can, without the Parliament’s knowledge, introduce a new Article. So, for the right-wing in India the issue is still to be decided.
A writ petition filed by NGO “We the Citizens” challenges the validity of both Article 35A and Article 370. The NGO claims that Article 370 was only a ‘temporary provision’ to help bring normality in Jammu and Kashmir and strengthen democracy in that State. The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.
The petition said Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.
A second petition filed by Kashmiri pandit woman Charu Wali Khanna, whose ancestors migrated centuries back from the state, challenged Article 35A and Section-6 of the J&K constitution on the grounds that they discriminate against a women’s right to property. She claims that “her children are denied a permanent resident certificate, thereby considering them illegitimate” because she married a person from outside the state.”
Other states in India with special provisions:
There are 35-A like provisions for other states too like Himachal Pradesh and the north-eastern states. So the debate is a wider one. It would not only invalidate 35-A with respect to Kashmir, but also with respect to several other states including Mizoram, Nagaland and Himachal. But focus is only on Kashmir for the known reasons. And it is to be remembered that the Article is not some special concession to J&K but the last vestige of a broken promise that India made to us decades ago.
International dimension of Kashmir dispute:
Abrogation of Article 35-A would virtually make the Resolution 47 of 21st April 1948 of the UN Security Council redundant for all times. The Resolution empowered the United Nations Commission for India and Pakistan (UNCIP) to facilitate a “free and impartial plebiscite to decide whether the state of J&K is to accede to India or Pakistan”. But once 35-A is removed it would automatically change the demographics of J&K.
It is also important to note that in 1957, Security Council Resolution 122 noted about the convening of a constituent assembly, as recommended by the General Council of the All Jammu and Kashmir National Conference:
“any action that assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire state or any part thereof, or action by the parties concerned in support of any such action by the assembly, would not constitute a disposition of the state in accordance with the principles” established by previous resolutions of the Security Council and UNCIP.
So as for this statement goes, even the constituent assembly of J&K had no power to enter into any agreement with the union of India that can jeopardize the scheme of plebiscite.
Question of legitimacy:
The Indian state has a long record of betrayal of promises, democratic values and trust. The façade of legitimacy rests on the instrument of accession and Article 370. Those people who advocate the abrogation of article 370 (35-A) have not read the article carefully. It is article 370 which says that Article 1 of the Indian constitution applies to the state of J&K. If you abrogate article 370, Article 1 stops applying to the state which means J&K will become independent. I believe that there is scope for moving to the International Court of Justice. On the basis of reading of the constituent assembly debates and the constitution of India, the case is open for contestation.
Dr. Bashir Ahmad Veeri is a former member of the Jammu and Kashmir Legislative Council from National Conference. Views are personal