All about Article 35A that's been revoked by the Modi government

All about Article 35A that's been revoked by the Modi government
New Delhi: Union Home Minister Amit Shah in Rajya Sabha on Aug 5, 2019. (Photo: IANS/RSTV)
  • The government of Jammu and Kashmir just asked pilgrims visiting the state on the Amarnath Yatra to leave as soon as possible because of ‘terrorist threats’.
  • Over the past week, the Indian government has deployed a total of 38,000 additional troops in the state.
  • Indian Air Force (IAF) planes have been seen flying overhead, including the C-17 heavy lift aircraft normally used to transport troops from one location to another.

Article 35A of the Indian constitution contains a provision that sanctions the Legislature of Jammu and Kashmir the complete freedom to decide who will be the permanent residents of the state. As per the powers conferred by Article 35A, the state legislature can confer exclusive rights on these permanent residents in matters of property ownership, jobs in the public and private sector, scholarships, aids and other government grants and benefits. The provision contained in this article mandates that the laws made under this article by the state cannot be questioned for violating the constitution or any other laws of the land.

History of Article 35A

In response to the advice from the Jawaharlal cabinet, Article 35A got included into the Constitution of India in 1954 through an order issued by the then President Rajendra Prasad. The controversial Constitution included in 1954 came about after the Delhi Agreement signed in 1952 between Jawaharlal Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah. This agreement extended the Indian citizenship to Jammu and Kashmir’s state subjects.

Background of Article 35A

The Presidential Order that brought about Article 35A was enacted under Article 370 (1) (d) of the Indian Constitution. As per this provision, the President has the powers to make some “exceptions and modifications” to the Constitution to ensure the welfare of ‘State subjects’ of Jammu and Kashmir. Hence, Article 35A was incorporated into the Constitution of India as a proof of the special attention the Indian government rendered to the ‘permanent residents’ of the state of Jammu and Kashmir.

Why the Article 35A in news?

While the government of India is taking serious steps to bring about permanent peace in Kashmir, it has been said that the parliamentary route to making laws was found to be bypassed when the President ordered for the inclusion of Article 35A in the Indian constitution. The Nehru government did not take steps to place it for discussion in the Lok Sabha and Rajya Sabha. In March 1961, a five member bench of the Supreme Court discussed the powers of the President under Article 370 to modify the Constitution. Though the court accepted that the President has powers to modify a provision that exists in the constitution, the judges did not comment anything about whether the President can introduce a new article without the knowledge of the Parliament.

Challenging the validity of Article 35A

‘We The Citizens’, an NGO has filed a petition challenging the validity of Articles 35A and 370. They argued that while four representatives from Kashmir were present in the constituent assembly that oversaw the drafting of Constitution, no special status was given to the state of Jammu and Kashmir. Article 370 was intended only as a temporary measure to bring about normalcy in Jammu and Kashmir and empower the democracy in the state. Hence Article 370 cannot be used to make a new Article 35A. Restricting the citizens from other states of India to seek employment in the state or buy property in Jammu and Kashmir is a clear violation of the fundamental rights sanctioned by the articles 14, 19 and 21 of the Constitution of India.

The Supreme Court bench led by Justice Deepak Mishra has said that the validity of Article 35A and Article 370 can be decided by a Constitution Bench.