Article 35A is a provision contained in the Constitution which is giving a carte blanche to the Jammu and Kashmir Legislature, to decide who are all permanent residents of the state and they have special rights and privileges in public sector jobs, assets in the state Acquisition, scholarship and other public assistance and welfare. Provision is mandatory that any legislation of the legislature coming under it can not be challenging to break the constitution or any other law of land.
How did this come about?
On the advice of the Jawaharlal Nehru Cabinet, Article 35A was incorporated in the Constitution in 1954 by the order of then President Rajendra Prasad. Following the order of the controversial Constitution (application for Jammu and Kashmir) 1954, Delhi agreements 1952 entered into between Nehru and then Prime Minister of Jammu and Kashmir, Sheikh Abdullah, who called ‘State subjects’ of Jammu and Kashmir Increased Indian citizenship.
The presidential order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to do some “exceptions and amendments” in the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.
Therefore, Article 35A was added to the Constitution in the constitution as testimony of special consideration given to ‘Permanent Residents’ of Jammu and Kashmir.
What difference does it make?
When the President included Article 35A in the Constitution, the parliamentary way of making the law was removed. Article 368 (i) of the Constitution provides the power to amend the Constitution only in Parliament. So what did the President do outside his jurisdiction? Is Article 35 A void because the Nehru Government did not put it in front of Parliament to discuss it? In March 1961, the Supreme Court’s five judicial benches in Fulllal vs Lucknow discussed the powers of the President to amend the constitution under Article 370. Although the court observed that the President can amend the existing provision in the Constitution under Article 370 but the decision is silent that the President can present a new paragraph, without the knowledge of the Parliament. This question remains open.
A writ petition filed by the NGO has challenged the validity of both Article 35A and Article 370. It argues that the four representatives of Kashmir were part of the Constituent Assembly in the draft of the Constitution and Jammu and Kashmir State was never given any special status in the Constitution. It is argued that Article 370 was the only ‘provisional provision’ to bring generalism in Jammu and Kashmir and help in strengthening democracy in that state. Constitutional makers did not intend to Article 370 to bring permanent amendments to Article 35A in the Constitution.
It is said in the petition that Article 35A is against the “spirit of unity of India” because it creates “class within the class of Indian citizens”. In other states, prohibiting the citizens from buying employment or property within Jammu and Kashmir is a violation of the fundamental rights under Article 14, 19 and 21 of the Constitution.
A second petition filed by Charu Khanna, native of Jammu and Kashmir, has challenged Article 35A to protect certain provisions of the Jammu and Kashmir Constitution which, if an original woman does not hold a permanent resident certificate, the origin of the property Restricts the rights. The petition said, “Their children have been deprived of permanent resident certificate, which they consider illegal.”
What difference does it make?
Attorney General K.K. Venugopal has demanded a debate in the Supreme Court on sensitive issues.
Recently, under the leadership of Justice Deepak Mishra, the Supreme Court Bench tagged Khanna Petition with the V. Citizens case, which has been referred to the three judicial benches. The court has indicated that the legitimacy of Article 35 A and 370 can be finally determined by a Constitution Bench.
The post What is Article 35A? How did this come about? appeared first on AllWishes4u.
