Whats is Article 35A ? Remove Article 35A

Tuesday, September 10, 2019

Whats is Article 35A ? Remove Article 35A

What is Article 35 A ?

What is Article 35 A ?
2. What is Art 35-A?  Art 35-A empowers the Jammu and Kashmir Constitution to define “permanent residents” (PR) of the state.  Only the J&K assembly can change the definition of PR through a law ratified by a two-thirds majority.  It provides some special rights and guarantees to safeguard the unique identity of the people of J&K.  It was brought in by a presidential order in 1954.

#removearticle35a #article35a

3. What is the case?  The Supreme Court is hearing petitions challenging the validity of Art 35A.  The legitimacy of the Instrument of Accession, by which J&K united with India, is in question.  The validity of the negotiations which led to the adoption of Article 370 is also questioned.  [Article 370 underscores J&K’s special legal status, and has actually given the Centre the power over that state.] 3
4. Continue…  The case has been adjourned as J&K administration and Centre cited local poll preparations.  The Centre also said an interlocutor has been appointed and the talks are going on. 4
5. What is the contention?  Rights – From a purely individual rights or economic integration perspective, the case for 35A is not clear- cut.  There is a contention that any restrictions differentiating residents & non-residents are inherently discriminatory.  But this argument would not only invalidate 35A with respect to Kashmir alone.  Several other states including Mizoram, Nagaland and Himachal would also be affected by it. 5
6. Continue…  Constitution – Art 370 is the only mechanism that allows the Indian Union to legally exercise power in Kashmir.  Abrogating that mechanism is not just abrogating a specific policy.  It would amount to repudiation of an important part of the legal structure which India’s claims rest upon. 6
7. What had the Court’s stance been?  As a matter of law, the status of Art 35-A had been considered by the Supreme Court ½ in the past.  The Court had observed that the Indian state needs to honour the terms and conditions in different instruments of accession.  Accordingly, the SC had noted that essentially, the laws governing J&K are part of a political settlement.  So it is up to the political process to modify the terms of the settlement, and not that of the judiciary. 7
8. How to deal with it?  The challenge in leaving it to political process is that the application of this principle could be deeply politicised.  So the Supreme Court can instead uphold the validity of 35A through its judgement.  Nevertheless, it should also ensure to not completely leave it to the mercy of the J&K assembly when it comes to discrimination issues.
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One Comment

  1. Learn & Earn Academy says:

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