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Why In News?
The Centre recently told the Supreme Court that it had appointed an interlocutor for holding talks with various stakeholders in Jammu and Kashmir and requested it to adjourn the hearing over the politically contentious Article 35A of the Constitution. The court settled for 12 weeks in its order.
FACTS ( For Prelims)
1.Article 35A of the Indian Constitution is an article that empowers the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents.
2.It is added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India, “in exercise of the powers conferred by” clause (1) of Article 370 of the Constitution, with the concurrence of the Government of the State of Jammu and Kashmir.
3.The Constitution of J&K defines ‘permanent residents’ as those people who on 14 May 1954:
a)were state subjects of Class I or of Class II type;
b)or had lawfully acquired immovable property in the state and been a permanent resident of the state for more than ten years.
4.It also has a provision to recognize as permanent residents, people who had migrated to Pakistan and returned, though subject to certain conditions.
5.Though the article empowers the state legislature to define ‘permanent residents’, however, the right of the state legislature is not, unlimited. They can give these special rights and privileges only in the following four categories:
a)Employment under the state government;
b)Acquisition of immovable property in the state;
c)Settlement in the state;
d)Right to scholarships and such other forms of aid as the state government may provide
6.The state legislature can alter the definition of a permanent resident by passing a law with a two-thirds majority.
7.only permanent residents of Jammu and Kashmir are allowed to vote in the state Assembly election or contest elections to the state Assembly.
8.The state also bars outsiders from buying property in or from settling in Jammu and Kashmir.
9.Such a person cannot get a job in the Jammu and Kashmir government.
- According to the Constitution of India, Article 370 provides temporary provisions to the state of Jammu and Kashmir, granting it special autonomy.
2.Article 370 is drafted in Amendment of the Constitution section, in Part XXI, under Temporary and Transitional Provisions.
3.The article says that the provisions of Article 238, which was omitted from the Constitution in 1956 when Indian states were reorganized, shall not apply to the state of Jammu and Kashmir.
4.The Power of the Parliament to make laws for the state is limited to-
a)Those matters in the Union and Concurrent List which correspond to matters specified in the State’s Instrument of Accession. These matters are to be declared by the President in consultation with the state government.
b)Such other matters in the Union List and the Concurrent list which is specified by the president with the concurrence of the state government. This means that laws can be made on these matters only with the consent of the state of J&K.
5.The provision of Article 1 (declaring India as a Union of States and its Territory) and Article 370 are both applicable to the State of J&K.
6.The other provisions of the Constitution can be applied to the state with such exceptions and modifications as specified by the President in consultation with the State government or with the concurrence of the state government.
7.The President can declare that Article 370 ceases to be operative or operates with exceptions and modifications. However, this can, by the President only on the recommendation of Constituent Assembly of the state.
Article 368 in part XX of the Constitution deals with the Powers of Parliament to amend the Constitution and its procedure.
It states that Parliament may, in the exercise of its Constituent Power, amend by way of addition, variation or repeal any provision of the constitution in accordance with the procedure laid down for the purpose.
However, the Parliament cannot amend those provisions which form the ‘basic structure ‘ of the Constitution. This was ruled by the Supreme Court in the Kesavananda Bharati Case (1973)
Article 368 provides for two types of amendments that is by a Special majority of Parliament and also through the ratification of half of the states by a simple majority
Equality before law The State shall not deny to any person. equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practice any profession, or to carry on any occupation, trade or business
Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law
The Union Government has appointed former Intelligence Bureau (IB) Chief Dineshwar Sharma as its Representative (or special interlocutor) to initiate and carry forward sustained dialogue on Jammu and Kashmir (J&K) with all stakeholders. In his new role, he will have the rank equivalent to a Cabinet Secretary.
ANALYSIS (For Mains)
Article 35A is a bone of contention for two reasons. First, for the manner in which it was added to the Indian constitution via the Presidential Order of 1954, bypassing the prescribed parliamentary procedure, hence the call for its unconstitutionality. Second, for its discriminatory results on certain sections of the people.
A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the President’s powers under Article 370 to ‘modify’ the Constitution. Though the court concludes that the President has the power to modify the Constitution under Article 370, the judgment is silent as to whether the President is empowered to bring about a radical change in the Constitution by introducing a new Article. This question remains open till date.
Argument against Article 35A
1.The provision bars Indian citizens, other than those who are permanent resident of Jammu and Kashmir, from seeking employment, settling in the state, acquiring immovable properties or undertaking any trade or business if the state makes any law to that effect and it cannot be challenged before any court. Such a provision could only have been introduced through a Constitutional amendment under Article 368 and not through a Presidential Order under Article 370.
2.The provision creates a class within a class of Indian citizens., Article 35A is in conflict with Article 14, 19 and 21 of the Constitution.
3.Article 35A makes way for gender discrimination by denying property rights to a J&K permanent resident woman who marries a non-resident while a man who marries outside the state will continue to enjoy his rights. The children of the woman who marries a non-resident are also denied property rights.
NOTE 4 STUDENTS- In the 2002 Sushila Sawhney Case The J&K High Court held that “ a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of the state of Jammu and Kashmir.”
However, the 2002 order was silent on the rights of the children born to a woman who marry non-residents.
Arguments For Article 35A
1.If Article 35A is abrogated, then all 41 subsequent Presidential Orders will then become susceptible to legal challenges.
2.This is because all of these Orders were in essence amendments to the 1954 Order. These subsequent orders have extended 94 out of the 97 entries in the Union List to the state as well as applied 260 articles of the Indian Constitution to the state.
3.Attempt to undo article 35A would strike a fatal blow to nationalist in the state, and against the backdrop of escalating protest in the state the issue could potentially be explosive.
Source-The Hindu (30th October 2017)
Critically analyze the provisions of Article 35 A.