There is a considerable amount of tension in the state of Jammu and Kashmir, and a debate is on throughout the country, with the Supreme Court taking up a petition to challenging the validity of Article 35A of the Indian Constitution.
The state of J&K observed a total cessation of activity ahead of the Supreme Court’s Monday hearing. A complete shutdown was called by members of the separatist Joint Resistance Leadership in the Valley. Demonstrations and protests urging the protection of Article 35A were held in Chenab valley and Pir Panjal valley. Less than no traffic was observed on the roads and most people preferred to stay indoors. The Amarnath Yatra, as of now, is put on hold in light of the tense scenario.
Here is a lowdown on what the Article 35A of the Indian Constitution says and why is it of such great importance for Jammu and Kashmir.
What is Article 35A?
The Article 35A of the Indian Constitution empowers the state legislation of Jammu and Kashmir to not only define “permanent residents” of the state but also equip them with special rights and privileges. In simper words, the permanent residents of Jammu and Kashmir, that is the people holding the Permanent Resident Certificate (PRC), have exclusive right to acquire property in the state and enjoy any state-sponsored schemes. These privileges and rights are not extended, in any way, shape or form, to any non-permanent citizen.
The Article is located in Appendix-1 of the Indian Constitution within the text of Presidential Order, 1954.
The History of Article 35A
Article 35A has quite an elaborate, not to mention interesting, history associated with it. Prior to 1947, the state of Jammu and Kashmir came across as one of the princely states, whose citizens were not referred to as the British colonial subjects but as subjects of the state, under the British rule. In 1927, the then Maharaja of Kashmir, passed the Hereditary State Subject Order which granted the respective state subjects with the right to government office and the right to land use and ownership. These rights were extended solely to the state subjects and eliminated any availability of the same to the non-state subjects.
After the accession of Jammu and Kashmir to the Indian Union, in October 1947, even though the Maharaja ceded all control to the Government of India, the exclusivity of state subjects remained unchanged. In the 1952 Delhi Agreement, the government of the state and the Union collectively agreed upon the extension of Indian citizenship to all residents of the state but the state would still be empowered to legislature over the rights of the state-subjects, who will now be referred to as permanent residents. Article 35A was incorporated into the Constitution by an order of the then President Rajendra Prasad on the advice of Prime Minister Jawaharlal Nehru and his cabinet.
Article 35A: The controversy
A writ petition was filed by a Delhi-based NGO, We the Citizens, stating that Article 35A granted special status and privileges to the permanent residents and by doing so discriminated against the citizens of the rest of the country, or the non-permanent residents for that matter. There were a number of pointers provided by the said NGO that disfavoured any form of special treatment to selected citizens.
As per the NGO, Article 35A should be declared “unconstitutional” as it does not ensure equality of all citizens before the law. The NGO also questioned the scope and extent of the President’s powers. The President, as per the NGO, does not enjoy the same power as the Parliament and cannot skip through the law-making process. Any addition, elimination or revision in the constitution should by default, go through the legislature, which was not the case with Article 35A.
The Jammu and Kashmir government, on the other hand, is quite assertive when it comes to contesting the President’s jurisdiction. As per the J&K government, the President has full authority to incorporate a new provision in the Constitution by way of a direct order.