In 2014, We the Citizens, an NGO, filed a petition in Supreme Court challenging article 35A on the grounds that it was not passed as per article 368 of Indian constitution (Procedures related to amendment of constitution) and is discriminatory for Indian citizens outside J&K since they cannot settle in the state. This petition along with another petition filed by Dr. Charu Wali Khanna on the grounds of gender inequality in the state due to the article 35A and section 6 of J&K’s constitution was referred to a constitutional bench of 3 judges in July this year. With this, an intense debate on this 63 year old pending issue has begun both legally and politically.
WHAT IS ARTICLE 35A?
- Was enacted under article 370 of the Indian constitution by a presidential order in 1954.
- Empowers the state legislature to define state’s “Permanent residents” (PR) who enjoy special rights and privileges.
- Definition of permanent residents:
- Indian citizens
- Domicile state subjects as of 14th March, 1954/those who have been residents of J&K for 10 years and have acquired an immovable property legally.
- All emigrants from Jammu and Kashmir (including those who migrated to Pakistan) and their descendants – state subjects for two generations.
- Prohibition for Non-PR’s
- Can neither settle nor can acquire an immovable property in the state.
- Not eligible for state government jobs.
- Cannot vote in assembly elections.
- They cannot enroll in state run colleges, universities, for scholarships or aids offered by the state government.
VIOLATION OF FUNDAMENTAL RIGHTS
The main motive behind adding this article to constitution was to preserve the special status of the state. But, it violates many fundamental rights enshrined in the Indian constitution.
- Article 14 (Right To equality before law): Article 35A in itself is a gender discriminatoryarticle because when a woman who holds a PR certificate of J&K gets married to a non-PR outside the state, she loses all her rights as a citizen of J&K. On the contrary, a man who is a PR of J&K does not lose his rights even after marrying a Non-PR from other state. What is more unfortunate is that the article 35A empowers the state legislature to frame laws without attracting a challenge on the grounds of violation of fundamental rights of other Indian citizens.
- Article 16(Equality of opportunity in public employment): It clearly states that no citizen can be denied the right to employment or office under the state on the grounds of place of birth, race, caste, sex, descentor religion.
- Article 19(1)(e): On one hand, as per article 19, every Indian citizen has a fundamental right to reside (stay temporarily at a place) and settle (setup a home/ domicile) in any place within the Indian Territory (with some exceptions) But on the other hand, article 35A violates this right by not allowing Non-PR’s to settle in J&K.
OTHER ISSUES
- Discriminatoryfor the state residents : J&K is divided into 3 major geographical areas- Jammu, Kashmir and Ladakh. Objections to abrogation of this article have been raised mostly in the Kashmir valley and not in Jammu or Ladakh. Ladakh, on the contrary wants a separate Union Territory. Unfortunately, politicians, specifically of J&K voice the opinion of one part of the state and not state as a whole which has certainly led to differences amongst the citizens of J&K.
- Many have argued that abrogation of article 35A will change the demography of Kashmir. First, one needs to understand that if the demographics will change, it will change in the entire state of Jammu and Kashmir, and not only in the Kashmir valley. Secondly, in 1990, more than 4 lakh Kashmiri Panditswere forcefully displaced from their own land, Does that not change the “demography” of state?
- National Security: Article 35A considers the residents of PoK as the PR’s of J&K. This gives an opportunity to terrorists from PoK area to cross over LOC, marry the local Kashmiri girls, get settled in J&K with special privileges and then carry out terrorist activities in the state.
- Indian constitution provides for Single citizenship e.: Indian citizens owe allegiance only to the union. This again is contradicted by the presence of article 35A as J&K citizens are both the citizens of India and J&K. In 2016, while discussing on the applicability of SARFAESI act in the state, the J&K High courtsaid that the state has “absolute sovereign power” to legislate in respect of laws affecting the PR’s of state. This was rejected by the SC which said that the residents of J&K are “first & foremost” the citizens of India & thus the “state has no vestige of sovereignty outside Indian constitution”.
Keeping in mind the complexity of Article 370, the Abrogation of article 35A is not an easy task. As recommended by The Attorney General, K.K. Venugopal, there is a need for a ‘larger debate’ on validity of article 35A. It’s also important to have a debate on article 370 which despite of being a temporary provision in the Part XXI of the Constitution has created voids in integrating J&K with other states.
As said rightly by Dr. Shyama Prasad Mukherjee, एक देश में दो प्रधान, दो विधान और दो निशान नहीं चलेंगे(It’s not acceptable to have 2 Prime ministers, 2 constitutions and 2 flags in one country)