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Controversy over Article 35A
Aug 10, 2017

[GS Paper II:(Functions & responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, devolution of powers and finances upto local levels and challenges therein)]

Why in News?

  • Recently a petition has been filed in the Supreme Court (SC) by a Kashmiri woman, who has been denied the right to property in the state by virtue of Article 35A. 
  • In its response, the court sent notices to the Centre and the state governments to address her plea.
  • The central government responded in SC that since Article 35A raises several "sensitive questions" so the point about its legality demands a "larger debate". 
  • Earlier, an NGO, We the Citizens, had also challenged Article 35A in SC in 2014 on grounds that it was not added to the Constitution through amendment under Article 368. The case is pending in the Supreme Court.

Background

  • J&K became a part of India through instrument of accession signed by its ruler Hari Singh in October 1947.
  • After J&K's accession, Sheikh Abdullah (Sadr-i-Riyasat) negotiated J&K's political relationship with New Delhi, which led to the inclusion of Article 370 in the Constitution.
  • Article 370 guarantees special status to J&K, restricting Union's legislative powers to three areas: defence, foreign affairs and communications.
  • However, under the Delhi Agreement 1952 between Abdullah and JL Nehru, several provisions of the Constitution were extended to J&K via Presidential Order in 1954 including Article 35A.

What is Article 35A?

Article 35A was added to the Indian constitution through a presidential order of 1954 with the then J&K government's concurrence.

  • Article 35A allows the Jammu and Kashmir legislature to define the list of 'permanent residents' of the state, who are eligible to vote, work for the state government, own land, secure public employment and college admissions etc. Non-permanent residents are denied all these rights.
  • A woman from outside the state shall became a permanent resident on marrying a male permanent resident of the state but a daughter who is born state subject will lose the right on marrying an outsider.

What is the significance of Article 35A?

  • J&K's Constitution was framed in 1956 in which permanent residents law was defined. All persons born or settled within the state before 1911 or after having lawfully acquired immovable property resident in the state for not less than ten years prior to that date. 
  • Permanent residents law prohibits non-permanent residents from permanent settlement in the state, acquiring immovable property, govt. jobs, scholarships and aid. 
  • It was also interpreted as discriminatory against J&K women. It disqualified them from their state subject rights if they married non-permanent residents. 
  • In a landmark judgment in October 2002, J&K High Court had held that women married to non-permanent residents will not lose their rights. Though the children of such women will not have succession rights.

PT Facts

  • Article 370 in Part XXI of the Constitution grants a special status to Jammu & Kashmir (J&K). According to it all the provisions of the Constitution of India do not apply to J&K.
  • J&K is also the only state in the Indian Union which has its own separate state Constitution.
  • Part IV (dealing with Directive Principles of State Policy) and Part IVA (dealing with Fundamental Duties) are not applicable to J&K.
  • The term of the J&K Assembly is six years unlike other Indian states assemblies.


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