Context

Union home ministry decided to move in 10,000 additional troops to Kashmir, which has amplified apprehensions on the ground about the removal of the Article 35A and Article 370, the two constitutional provisions that give the state its distinct identity within the Union of India.

About

What is Article 35A?

• It is a Constitutional provision, which strengthened J&K Legislature to decide who all are ‘permanent residents’ of the State.
• It also confers on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare.

Background

• Article 35A was incorporated through a Presidential Order, the Constitution (Application to J&K) Order of 1954. Therefore, it was added without undergoing the procedure for constitutional amendments as laid down in Article 368.
• The Presidential Order was issued in exercise of the power conferred under Article 370 (1) (d) of the Constitution. Whether such power also extends to inserting a new Article in the Constitution is contentious.
• The ‘classification’ created by this article has to be tested on the principle of equality as it treats non-permanent residents of J&K as ‘second-class’
• Such persons are not eligible for employment under the State government and are also debarred from contesting elections.

Arguments in support of 35A

• Maintains unity of J&K: This article safeguards the uniqueness of the J&K. Even other states like Himachal Pradesh and Uttarakhand also have the laws in which no outsider from the state can buy a land.
• Striking down Article 35A: It will have various consequences on other constitutional amendments contained in the 1954 Presidential Order. And this can erode the autonomy of J&K.
• Demography of J&K: Scrapping Article 35A would allow people from outside J&K to settle in the state and acquire land and property, and the right to vote, thus altering the demography of the state.
• Other Presidential Orders: If the article 35A is scrapped, other Presidential orders may then become susceptible to legal challenges.
• Federalism: Scrapping Article 35A would violate Article 370 as well as the instrument of accession. The Indian constitution purposefully mandates differential treatments for different units of the Indian Union.
• North-Eastern states: The removal of Article 35A would also indirectly impact the special provision bestowed upon Mizoram, Nagaland etc. under Article 371.

Issues Related to Article 35A

• Bypasses Article 368: The parliamentary route of law-making was bypassed under the Article 368 (i) when the President incorporated Article 35A into the Constitution. This article empowers only Parliament to amend the Constitution.
• Against Unity: Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. As this article restricts 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.
• Right to Unity: Article 35A protects certain provisions of the Jammu and Kashmir Constitution, which restrict the basic right to property if a native woman marries a man not holding a permanent resident certificate. Her children are denied a permanent resident certificate, thereby considering them illegitimate.
• Deny of opportunity: Meritorious students are denied scholarships and they cannot even seek redress in any court of law.
• Rights of Pakistani Refugees: This article undermines the rights of West Pakistan refugees. Persons who migrated from Pakistan to India in 1947 have been denied the permanent resident status of J&K.
• Promotes Separatism: This article has catalysed in radicalization and ghettoization and aids separatist ideology.
• Human Rights: It grossly undermines the well-being of Pakistani Refugees and Indian Citizens outside of the state. It also undermines their faith in the goodness of India as well as its impartial judicial system.
• Hampers Growth: Article 35A also adversely affects the economic development of the state.

Way Ahead

• This matter requires the active participation of all stakeholders. It is necessary to give confidence to the residents of J&K that any alteration in status quo will not take away their rights but will boost J&K’s prosperity as it will open doors for more investment, resulting in new opportunities.
• Political parties should refrain from inflaming popular passions on these sensitive issues.
• There is a need to adopt a humane approach as far as solving the problems of permanent residence certificate faced by West Pakistan refugees.