Is Article 35A Constitutionally Valid?

Article 35A conferred certain rights to the Jammu and Kashmir Legislature to restrict citizens of other states of Union of India from residing or settling in three of its provinces which included Jammu, Kashmir Valley and Ladakh. It became a part of the Indian Constitution through a presidential order, i.e., The Constitution (Application to Jammu and Kashmir Order) 1954, leveraging the powers laid down by clause (1) of Article 370 of the Indian Constitution. On July of 2018, a petition was filed by an NGO which challenged its constitutionality as the aforesaid article was in contravention with Article 19(1)(d) as it restricted a citizen of an Indian Union from settling in Jammu and Kashmir.

Supreme Court Lawyer Charu Wali Khanna had filed another petition stating that the aforementioned Article violated Article 14. The primary crux of the petition filed was that a woman from Jammu and Kashmir lost her right to reside if she got married to a person from another state. The provisions enshrined in Article 35A were discriminatory on women and it directly contravened with Article 14, i.e. Right to Equality. The crux of the aforementioned issue was that, should the Government of India ignore the historical pact it had with its king, Maharaja Hari Singh who had advocated for complete autonomy for the State of Jammu and Kashmir by adhering to the principles enshrined in its Constitution? Adding on to that it is imperative to look at how it would resonate with the people of Jammu and Kashmir as it alters the demographics and culture of the state.

History of Jammu and Kashmir

In British India, there were over 565 princely states that were indirectly controlled by the British Empire. The British gave a greater deal of autonomy to some of the states; however, defence and external affairs were still administered by the British. The Government of India Act, 1935 introduced the concept of ‘Instrument of Accession’ where a certain ruler can accede his princely state or kingdom to the Union of India. Almost all princely states except Hyderabad and Jammu and Kashmir did so. It is imperative to note that the princely state of Hyderabad was acceded through a military operation which was codenamed as ‘Operation Polo’ but Jammu and Kashmir posed a different problem to India.

It is to be noted that Jammu and Kashmir was ruled by Maharaja Hari Singh who wanted his kingdom to be independent and later signed the Standstill agreement to express his intention. Sheikh Abdullah, the leader of Kashmir’s largest political party, National Conference despised the Dogra rule led by Maharaja Hari Singh and was expecting him to abdicate his position as the ruler of the kingdom. In the meantime, the Islamic Republic of Pakistan wanted to occupy Kashmir. So it sent certain tribesman from the North Western Frontier Province (now known as Khyber Pakhtunkhwa) which was assisted by the Pakistani Army and its Intelligence (Inter-Services Intelligence) to annex the kingdom by force.

As soon as he got to know about Pakistan’s intentions to annex the kingdom, he immediately sought India’s help to push back the invading tribesman. India conceded to the Maharaja’s demands on two conditions, firstly, he must sign the instrument of accession and secondly, he must set up an interim government led by Sheikh Abdullah. The king conceded to the demands put forth by India. Later, Indian troops were airlifted to Srinagar where they successfully managed to push back the forces and secure the provinces of Jammu, the Kashmir valley and Ladakh and left Pakistan with some parts of Jammu (now known as Azad Jammu and Kashmir) and Northern Areas (now known as Gilgit-Baltistan). Later, an UN-sponsored Ceasefire came into force and it is imperative to note that the territories lost by India are still under Pakistani Occupation. As of now, India has taken little to no steps to retrieve the territories that were forcibly annexed by Pakistan.

When the Constitution of India came into force on January 26, 1950, special provisions were conferred to the state of Jammu and Kashmir which was considered as a temporary provision but existed till date. After Independence, Sheikh Abdullah declined to accede completely to the Union of India amid chaos. Whilst most of the states were readying to adopt the newly crafted constitution, Jammu and Kashmir declined to do the same in view of its political predicament. In order to fill the void, a temporary constitution, i.e, Article 370 was adopted exclusively for the state of Jammu and Kashmir. This temporary provision will be in force until normality is restored to the state.

Adoption of Article 35A By The J&K Constituent Assembly

Prior to the Delhi Agreement which was signed in 1952, the constituent assembly of Jammu and Kashmir met again in 1954 to formally ratify the aforesaid agreement which granted a greater deal of autonomy with regards to its state subjects. It is imperative to note that Article 35A lays down certain provisions which debar or prevent the subjects of other states of India from residing, settling and acquiring immovable property. It should be noted that the aforesaid provisions are in direct contravention with basic Fundamental Rights which are enshrined in Part III of the Constitution of India. As a matter of fact, the presidential order of 1954 ratified Article 35a which is considered as one of the biggest blunders in the History of Independent India.

Why Article 35A Contravenes with the Basic Structure of The Constitution of India

The provisions laid down by Article 35A is in direct contravention with Article 14, i.e. right to equality as it debars the citizens of other states of India from residing, settling and to acquire immovable property from the state. Adding on to that, it also prevents the subjects of other states of India from voting in local elections which are considered as a constitutional right and they are also exempted from employment opportunities. It also deters various private enterprises from other states of India from investing in the state.

It is imperative to note that the provisions laid down by Article 35A violate the principles of gender equality as it revokes the resident memberships of women who marry men outside Jammu and Kashmir. Adding on tot that, the children of such union are not entitled to attain the Permanent Resident Certificate (PRC). They are not conferred with the rights which are laid down by Article 35A. It should be noted that the same does not apply to the male subjects of the state.

They possess the right to bequeath their property their successors despite marrying someone outside of Jammu and Kashmir. It can also be considered as another violation of Article 14 (Right to Equality). It can be considered as an attack on the democratic and egalitarian fabric of India. It is highly important to note that the state legislature has not enforced any law which precisely defines the nature of permanent citizens. It can be implied that the people of Jammu and Kashmir are subjected to different treatments with regards to Citizenship.

For Example, Various Ethno-Linguistic Groups like Gorkhas and Balmikis have been residing in the Kashmir valley for generations and they’ve been granted citizenship but the refugees from West Pakistan were debarred from attaining the Permanent Resident Certificate (PRC).

With reference to the aforementioned facts, it can be concluded that Ethnic and Gender inequality prevails in Jammu and Kashmir and various groups are subjected to different treatments.

Various representatives from different parties of Jammu and Kashmir which includes National Conference, Jammu and Kashmir People’s Democratic Party and Jammu and Kashmir Liberation Front have expressed their views by stating that the validity of the aforementioned Fundamental Rights is subjected to the Delhi Agreement, 1952 which was ratified by a Presidential Order in 1954. But it is imperative to understand that a mere presidential order does not form a part of our constitution. Any orders are decrees passed by the President must attain the support of the majority in both houses of our parliament. The NGO which has filed a petition has stated that the aforementioned order by the president can only be considered as an Annexure but not as an integral part of the Constitution.

In 1981, Jammu and Kashmir Legislative Assembly passed the J&K Resettlement Act which was approved by the Kashmiri majority of the state. It opened the borders for all people of Kashmiri descent who fled to Pakistan to return to Jammu and Kashmir as Legitimate Citizens. But Non-Muslim Refugees from Pakistan and Occupied Kashmir were exempted from this provision. It is to be noted that Uyghurs from Xinjiang who fled to Kashmir before and prior to Chinese occupation were granted the status as State Subjects. It can easily be implied that previous and current incumbents were inclined towards the Muslims. It can be considered as an attack on the secular and democratic fabric of our Country.

Article 35A Contravenes the Following

  • Article 35A is violative of Article 14 as it debars women who married outside Jammu and Kashmir from residing, settling, acquiring and bequeathing immovable property.
  • It is violative of Article 19(1)(d) as it prevents subjects of other states of India from Residing, settling and acquiring property.
  • Various Ethno-Linguistic groups in Jammu and Kashmir are subjected to different treatments with regards to settlement and citizenship which is another violation of Article 14.

Conclusion

With reference to the aforementioned facts, it can easily be said that Article 35A is clearly holding the state and its subjects back. In view of its economic and political predicament, various militant and separatist organisations have gained a stronghold in the state of Jammu and Kashmir. It should be noted that it took our country and its judiciary many decades to abolish triple talaq.

This fact actually makes us question the credibility and reliability of our Institutions. Article 35A offers breathing space for many separatist and militant organisations like the Hurriyat, Jammu and Kashmir Liberation Front (JKLF), Lashkar-e-Taiba and Jaish-e-Muhammad which in turn has helped them to exert their influence. The existence of Article 35A is not conducive to the democratic, secular and egalitarian fabric of our Country and it needs to be revoked.

Rohan Aditya from Tamil Nadu National Law University

  He is a proud fan of Liverpool FC. He has watched the series Dark, and is currently seriously contemplating the idea of life.


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