Ushashi Datta

The ongoing debate about Article 35A has been doing the rounds of almost newspaper and TV Channels. If the Kashmir topic wasn’t already a tense thread wrapped around the country, the issue regarding privileges and rights of the residents of the State has been raised as a deep concern.

To decode what the hype about the Article 35A issue is, we have prepared a list here:

WHAT IS ARTICLE 35A?

Article 35A of the Indian Constitution defines “permanent residents” of the State of Jammu & Kashmir. This Article provides the resident’s special rights and privileges. A Presidential Order in the year 1954 added this provision to the Constitution. 

THE HISTORICAL BACKGROUND

Before 1947, Jammu and Kashmir was a princely state under the British, the people were known as ‘state subjects’ and not British colonial subjects. Following the political movements in the 20th Century, the Maharaja of Jammu and Kashmir in between 1912 and 1932 recognized the political identity of the residents as “hereditary state subject”. This gave them the right to the government office and the right to land use and ownership which weren’t available to non-state subjects.

When Jammu and Kashmir got acceded to India on 26 October 1947, the Maharaja gave up control over defense, external affairs and communications to the Government of India. Article 370 of the Constitution sealed the deal on this matter. Following this, by the 1952 Delhi Agreement, the governments of the State and the Union agreed that Indian citizenship would be extended to all the residents of the State but the State would legislate over the rights and privileges of the state subjects who would be called as ‘permanent residents’, which led to the insertion of Article 35A into the Constitution.

THE CONTROVERSY

In 2015 Jammu & Kashmir Study Centre challenged Article 35A by filing a petition in the Delhi High Court which subsequently was challenged in the Supreme Court as well.  The legal points made were:

  1. Article 35A was added to the Constitution by the executive head without any discussion in the Parliament, questions have been raised about the manner of its enactment. Thus the constitutionality of the order has been challenged.
  2. Besides prior to the adding of the Article it wasn’t presented before the Parliament, thus accusing the President of by-passing the parliament to add Article 35A.
  3. The classification of the Permanent Residents is violative of Article 14.
  4. It is violative of a woman’s property rights even if she is a permanent resident, by virtue of marrying a man of their choice.
  5. The West-Pakistan Refugees, by virtue of being non-permanent residents of Jammu and Kashmir they do not have the same rights and privileges as the permanent residents.

THE CURRENT SITUATION

Kashmir is clamoring to protect Article 35A as talks of challenging Article 370 is also emerging. Political parties and separatists are also opposed to the idea of fiddling with Article 35A fearing it would lead to situation worsening in the Muslim majority valley. Political parties feel the Kashmir resolution lies in greater autonomy and separatists fear the possibility of Hindus flooding the valley. Even as we celebrate the victory for Muslim women in the country by the declaration of Triple Talaq as unconstitutional, the women in Jammu and Kashmir face sad discrimination due to Article 35A.


Ushashi Datta is a law student at National Law University, Punjab.