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Supreme Court hearing on Article 35A deferred

By NL Team

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The debate on the validity of controversial Article 35A of the Constitution continues as the Supreme Court which was set to hear petitions filed against the provision today, deferred the hearing by 12 weeks just as Attorney General K K Venugopal reached the court for the hearing. Venugopal had sought the deferment in the wake of the appointment of Kashmir interlocutor Dineshwar Sharma.

The hearing comes a day after Congress leader P Chidambaram spoke for greater autonomy for Jammu and Kashmir. Chidambaram’s comments were strongly condemned by Prime Minister Narendra Modi and Finance Minister Arun Jaitley. Without directly referring to Chidambaram, PM Modi on Sunday told BJP workers in Bengaluru that Congress is “speaking the language used in Pakistan”. The Congress distanced itself from the comment by calling it an “individual opinion”.

Article 35A which operates as the backbone of Article 370 brought both the People’s Democratic Party and the National Conference together over the threat to the statute on whose basis Jammu and Kashmir functions as a state with special status. Supporters of the provision accuse the Centre of attempting to dilute the region’s distinct identity and facilitate a “demographic change”.

On Sunday, Kashmiri separatist leaders Syed Ali Geelani, Mirwaiz Umar Farooq and Yasin Malik asked people to be ready for a mass agitation if Article 35A was struck down.

What is Article 35A?

Article 35A is a provision in the Constitution of India that empowers the legislature of Jammu and Kashmir to define “permanent residents” of the state and grants them special rights and privileges in public sector jobs, acquisition of property in the state, scholarships and other welfare and public aid. Advised by the Jawaharlal Nehru Cabinet, the provision was incorporated by India’s first president Rajendra Prasad on May 14, 1954 through the Constitution (Application to Jammu and Kashmir) Order, 1954. It was added “in exercise of the powers conferred by” clause (1) of Article 370 of the Constitution, with the assent of the government of the state of Jammu and Kashmir.

According to Article 35A, with the exception of state subjects, that is, the permanent residents of the state, no citizen from any other part of India can acquire immovable property in the state, take up jobs with the state government, avail state-sponsored scholarships, or settle permanently anywhere in the state.

2014: Against the “oneness of India”

The first petition was filed by a Delhi-based NGO We the Citizens in 2014. The petition argues that that ‘Kashmir never separated from the Federation of Indian dominion’. The petitioners contend that “no special provision was made in the Indian Constitution giving special status/treatment to the state of Jammu and Kashmir”. The writ petition not only challenges Article 35A but also Article 370, which grants J&K a special autonomous status. According to the petitioners, Article 370 was a ‘temporary provision’ to ensure normality in the state and strengthen democracy. Allowing Article 35A to exist allows 370 to being in permanent amendments, which it shouldn’t.

We the Citizen NGO believes that Article 35A goes against the very ethos of “oneness of India” and creates a “class within a class of India citizens”. They claim that barring citizens from other states from jobs or buying property within Jammu and Kashmir is a violation of the fundamental rights under Article 14, 19 and 21 of the Indian Constitution.

2015: Violates Constitution and is illegal

In 2015, a Delhi-based think tank which is close to the RSS, Jammu and Kashmir Students Centre (JKSC) filed a petition against Article 35A calling it a “gross human rights violations for last 60 years”.

The JKSC contended 35A in the apex court in 2015, terming it as “illegal” as “there is no power conferred on the President of India to amend Constitution by incorporating any new Article in the constitution”.

According to JKSC, the then President Rajendra Prasad bypassed the amending procedure spelt out by the Constitution. They believe that the 1954 order which gains its power from Article 370, does not, however, state that it confers on the President executive powers to amend the Constitution in any way.

“Article 35A is the cornerstone of discrimination in Jammu and Kashmir. It was added to the Constitution of India through an Executive Order. It was a constitutional amendment signed straight away by the President in 1954 without the knowledge of Parliament, which has the sole right to amend the Constitution. It was a fraud that Jawaharlal Nehru pulled on the people of India,” media director of JKSC Abha Khanna told Mail Today.

2017: Violates property rights of women

Three weeks after the NDA government sought more time from the Supreme Court to facilitate a “larger debate” to deal with the two petitions filed against 35A, a fresh petition was filed this August. Supreme Court lawyer and Kashmiri native Charu Wali Khanna filed a petition on the grounds that the Article was discriminatory towards women and goes against Article 14 of the Constitution, which gives a fundamental right to equality before law.

Charu Wali Khanna challenges Article 35A for protecting provisions of J&K Constitution, which restricts the basic right to property of a native woman who gets married to a non-permanent resident. “Her children are denied a permanent resident certificate, thereby considering them illegitimate,” the petition said.

Whereas if a non-permanent resident woman marries a Kashmiri who is a state subject, she has the right to attain state subject certification.

Wali herself had an inter-caste marriage and settled outside Jammu and Kashmir, lost her credibility as a state subject and is unable to build a house in Kashmir.

2017: West Pakistan refugees denied basic rights

Few members of West Pakistan refugees, who moved to India during Partition in 1947 filed a petition in the Supreme Court challenging Article 35A. The petition which claimed that there are about 3 lakh refugees who settled in Jammu and Kashmir have been denied basic rights like the right to employment, education, ownership of property and political participation that the provision 35A grants to its “permanent residents”.

According to the petitioners, it denies necessary, natural and basic human rights result in “denial of basic civilizational recognition to a set of humanity which defies basic human values and civilisational ethos”.

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