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What is Article 35-A and why it is controversial?

After several postponements, and delays, the Supreme Court of India has finally set to hear the petition challenging Article 35A from February 26-28. While this announcement has received a huge amount of flak, as expected, there are hopes a judgment will guarantee a headway.

While there’s a lot of hue and cry over the Article 35 A, let’s take a deeper look into it.

So, what is Article 35A?

As per the Article 35A, the permanent residents of Jammu and Kashmir has been granted special rights. The Article was the outcome of a 1952 agreement between the Centre and Srinagar. A 1954 presidential order saw its annexure to Article 370, allowing the state to define who would constitute permanent residents of the state. As per the Article, only the permanent residents of the state shall be granted rights to settle down permanently there, acquire immovable assets, and avail government jobs and grants. The Article also disallows the J&K government from hiring non-permanent residents.

As per a report, Maharaja Hari Singh of Jammu and Kashmir was adamant about sticking to the Instrument of Accession while joining India, which included the law barring any outsider from buying property in Jammu and Kashmir. It is believed that Maharaja Hari Singh was scared that the British would be swayed by the beautiful climate and spectacular scenery of the state and begin settling in large numbers there. His fear extended to other Indians after independence, mainly an influx of Punjabis that may have led to the local Dogra community to losing jobs.

Why is it controversial?

The main controversy surrounding Article 35A, based on which many are opposing to any changes being made to it, is that the special rights accorded to permanent residents were introduced as an addition to Article 370, and not as an amendment to the Constitution. The Article was never tabled at Parliament and came into force by way of a presidential order.

Speaking on the issue, Jahangir Iqbal Ganai, senior advocate and former advocate general of J&K, said the article is not a part of the Indian Constitution, which render the foundation of all petitions baseless.

He said: “There is a very fine difference between the two. If one reads any book on the Constitution of India, they wouldn’t find a reference to the Article. Only Article 1 and Article 370 are applicable to J&K, while the other provisions are made applicable only by Presidential orders. Under Article 370, the President of India has powers to apply the Constitution of India vis a vis Jammu and Kashmir, with certain exceptions and modifications.

He added: “The very basis of the petition is not supported by law. They say that it’s an amendment and the President cannot amend the Constitution. But we say that it is not an amendment as it’s not a part of the Constitution of India but it’s a part of the Indian Constitution that was for J&K. By applying the Constitutional provisions to the state of J&K, the Constitution itself gives power to the President to apply the provisions of the Constitution by exceptions and modifications. So 35A is an exception to the chapter pertaining to the fundamental rights.”

What are the petitions against the Article and what do they oppose?

a. Petition by NGO ‘We the Citizens’

Trouble began in 2014 when a Delhi-based NGO ‘We the Citizens’ filed a petition stating “Kashmir never separated from the Federation of Indian dominion.”

It pointed out that J&K had already joined India under the Government of India Act, 1935. According to the NGO, the new rules of accession were signed by Dogra ruler Maharaja Hari Singh to “remove doubt, confusion or ambiguity”.

Challenging the constitutional validity of the orders passed by then president Dr. Rajendra Prasad, the petition states it limited the powers of Parliament to make laws for the state. It said: “The President of India under the garb of a temporary provision i.e. Article 370 (1) cannot amend the Constitution by incorporating a new Article of permanent nature.”

The NGO also contends, Article 35A creates two classes of citizens, which is against the basic tenets of our Constitution.

b. Petition by West Pakistan Refugees Action Committee Cell

In 2015, the West Pakistan Refugees Action Committee Cell moved the Supreme Court through a writ petition, pointing out the violation of human rights of refugees who settled down after partition independence.

West Pakistan refugees do not have the right to property or vote and are not recognized as permanent residents. They argue that their rights should be like that of those who migrated to West Pakistan but returned.

Referring to the Resettlement Act of 1982 passed by the state, the petitioners highlighted that it gave such persons and their kids the right to acquire permanent citizenship.

c. Petition by Charu Wali Khanna

Delhi-based Kashmiri Pandit Lawyer Charu Wali Khanna had a simple question: ‘Why can’t my property remain mine?’

Saying Article 35A favors men, Charu Wali had told the court, though men do not lose their right to permanent citizenship even after marriage to an outsider, women do.

So, a woman from outside the state becomes a permanent resident by virtue of marrying a male resident of the state, but a woman who is born as a permanent citizen loses her right after marrying an outsider.

Elucidating the same, she told: “We are entitled to property rights on inheritance basis, but that is limited. But what if I have property, and I die. Will my husband and children not be entitled to it? The Kashmiri women who have married outside are being denied admission for their children and even the gains of the PM Scholarship scheme. How can it be justified? A woman who has lived her whole life in J&K, her children are being denied rights just because she married an outsider. This is creating a situation of radicalization and thereby people will be forced to move outside.”

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