Article 35A. A new indicator in complicating the politics of Jammu & Kashmir.
Category: Politics.
Before India gain Independence Jammu & Kashmir was a princely states under the British Paramountcy. Post-Independence (after 15th August 1947), then Sardar Vallabh Bhai Patel, an architect of modern India pioneered the project of integrating princely state to the dominion of India. Maharaja Hari Singh agreed to sign an Instrument of Accession with the center facilitating its further integration with the mainland India with some exceptions.
This exceptions is marked by its special status granted to it under Article 370 of the Constitution of India which came into force on 26th January 1950. The special status is derived from the state’s legislature having special power to draw its own constitution, decides the rights and privileges and other socio-economic aspects of people living in the valley.
Briefly, I should introduce to you the importance of Article 368 of Constitution of India before nudging towards Article 35A. Article 368 empowers the parliament to amend any provision of the Constitution to enable the legislature to meet the demands of the people of India and adapt to the changing realities of the society in the broader context. Some of the provisions under consideration for the amendment requires the ratification of half the states of India (amendment need to be passed by a resolution through simple majority in the state legislature) for e.g. provisions regarding the rights, privileges,power and duties of President of India. Therefore, we can assume safely that no provisions of the Constitution can be amended without it being debated and discussed in the Parliament.
But Article 35A was inserted in the Constitution by the Presidential Order which reads The Constitution application (to Jammu & Kashmir) Order 1954, in the year 1954. The basis of this power of President where he can initiate an order to modify the Constitution springs up from Article 370(1)(d). Jawahar Lal Nehru the then Prime Minister of India doesn’t felt necessary to move this order in the Parliament where multiplicity of views and opinions of the legislators across the party affiliations may have given the order a different fate. So, this order technically have bypassed Parliament scrutiny and have amended the Constitution which is the prerogative of the legislative arm of the Parliament.
Article 35A empowers the state legislature of Jammu & Kashmir to unilateral declare any citizen a ‘permanent resident’ of the State. Further, it outlines various rights and privileges for the citizens of the state which includes public sector jobs, acquisition of property, scholarships and various public welfare aid.
A petition filed by the NGO ‘We The Citizen’ have challenged the constitutional validity of the Article 35A and Article 370. According to the petition Article 370 is a temporary provision of the Constitution which was inserted at that moment to bring normalcy in the state and strengthening of democracy in the valley. Further, this provision has created a class within a class of citizens in India which is against the spirit of oneness of the nation. Also, Article 35A is contradictory to the provisions of Article 14 (Right to Equality), Article 19 (Fundamental Rights) and Article 21 (Right to life and dignity), where former restricts the rights of the citizen belonging to other state to have gainful employment or acquire property in the state of Jammu & Kashmir.
So why this case has occupied the center stage after a prolonged silence for so many years. Recently appointed Attorney-General of India, K.K. Venugopal has referred to the Article 35A as controversial and discriminatory which needs to debated and discussed before the Parliament to decide the fate of the status of Jammu & Kashmir.
Jammu & Kashmir has been in a restive state for the last three decades since the militancy has entered in the valley. Recently situation is aggravated by the persistent demands of the secessionist forces for a separate state followed by cross-border infiltration of the terrorist from the neighboring state of Pakistan. Further, Sufi culture of the state that appeals to all the people belonging to different faiths has been replaced by the Wahhabi ideology pervaded from across the border. To achieve the idea of one India, integration of Jammu & Kashmir with the mainland India is central objective of the right wing party which is currently ruling at the center. To execute this projects parties often take the help of political, social and judicial institution accompanied by the support of the officials who are suppose to practice political neutrality. As the issue is now in the popular print and electronic media, Article 35A will continue to complicate the politics of Jammu & Kashmir in the time to come.
