What is Article 35A?
It is a constitutional provision that allows the Jammu-Kashmir assembly to define permanent residents of the state. According to the Jammu-Kashmir constitution, a Permanent Resident is defined as a person who was a state subject on May 14, 1954, or who has been residing in the state for a period of 10 years, and has “lawfully acquired immovable property in the state”.
When was Article 35A introduced?
What is the controversy?
The provision in Article 35A that grants special rights and privileges to permanent citizens appears in the Constitution as an “appendix”, and not as an amendment.
According to the NGO, Article 35A should be held “unconstitutional” as the President could not have “amended the Constitution” by way of the 1954 order and that it was only supposed to be a “temporary provision”. The Article was never presented before Parliament and came into effect immediately.
The Jammu and Kashmir government has contested the petition, saying the President had the power to incorporate a new provision in the Constitution by way of an order.
Why is it being challenged at court?
According to the petitioners, the provision was unconstitutionally added to the Constitution. The Indian Constitution does not allow the President to add or change existing provisions. This can only be done by the legislature after such change stands approved within the Parliament by the elected leaders of the country.
In the case of Article 35A, the provision was added without getting a nod from the Parliament.
View and counter-view
The view from the Right is that by striking down Article 35A, it would allow people from outside Jammu-Kashmir to settle in the state and acquire land and property, and the right to vote, thus altering the demography of the Muslim-majority state.
The state’s two main political parties, PDP and NC, contend that there would be no J&K left if this provision is tampered with, and have vowed to fight the battle together.
Former Chief Minister Mehbooba Mufti had warned that if Article 35A is removed, there won’t be anyone left to carry the Tricolour in Kashmir; Omar Abdullah has called it the death knell for pro-India politics in the Valley.
The Centre had, however, refused to take a stand on the issue, with Attorney General K K Venugopal informing the court that it was “very sensitive” and required a “larger debate”.