What is Article 35 A ?
What is Article 35 A ?
1. 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.
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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