Article 35A

Article 35A: A Controversial Clause in the Indian Constitution

Article 35A of the Indian Constitution is a controversial provision that grants special status to the state of Jammu and Kashmir (J&K). It was added to the Constitution through a Presidential Order in 1954, without any parliamentary debate or discussion. This article has been a subject of intense debate and legal challenges, with its proponents arguing for its necessity in safeguarding the unique identity and autonomy of J&K, while its opponents view it as discriminatory and a hindrance to national integration.

The Genesis of Article 35A

The genesis of Article 35A can be traced back to the turbulent period following India’s independence in 1947. The princely state of Jammu and Kashmir, ruled by Maharaja Hari Singh, had initially opted for independence. However, after the invasion of the state by Pakistani forces, the Maharaja signed the Instrument of Accession, joining India on October 26, 1947.

This accession was conditional, with the Maharaja retaining significant autonomy over the state’s internal affairs. To address this unique situation, the Indian Parliament passed the Jammu and Kashmir Constitution Act, 1954, which incorporated Article 35A into the Indian Constitution.

Provisions of Article 35A

Article 35A empowers the Jammu and Kashmir legislature to define “permanent residents” of the state and to confer special rights and privileges on them. These rights include:

• Right to own immovable property: Only permanent residents of J&K can purchase land or property in the state.
• Right to employment in government services: Only permanent residents are eligible for government jobs in J&K.
• Right to scholarships and other benefits: Only permanent residents can avail scholarships and other benefits offered by the state government.

The definition of “permanent resident” is determined by the Jammu and Kashmir legislature and has been subject to various interpretations over the years. This has led to confusion and legal challenges, particularly regarding the rights of non-permanent residents, including those from other parts of India.

Arguments in Favor of Article 35A

Proponents of Article 35A argue that it is essential for safeguarding the unique identity and autonomy of Jammu and Kashmir. They contend that the article:

• Protects the cultural and linguistic identity of the state: By restricting land ownership and employment opportunities to permanent residents, Article 35A prevents the influx of outsiders and preserves the cultural and linguistic identity of J&K.
• Ensures the political and economic stability of the state: By granting special rights to permanent residents, Article 35A fosters a sense of belonging and ownership among the people of J&K, contributing to political and economic stability.
• Reflects the historical and political context of the state: Article 35A is a recognition of the special status granted to J&K at the time of its accession to India, and it reflects the unique historical and political context of the state.

Arguments Against Article 35A

Opponents of Article 35A argue that it is discriminatory and a hindrance to national integration. They contend that the article:

• Violates the fundamental right to equality: Article 35A discriminates against non-permanent residents of J&K, denying them equal rights and opportunities.
• Creates a sense of separatism: By granting special privileges to permanent residents, Article 35A fosters a sense of separatism and undermines the unity of India.
• Hinders economic development: The restrictions on land ownership and employment opportunities imposed by Article 35A discourage investment and hinder economic development in J&K.
• Is unconstitutional: Opponents argue that Article 35A was added to the Constitution through an unconstitutional process, without parliamentary debate or discussion.

Legal Challenges to Article 35A

Article 35A has been challenged in various courts over the years. In 2015, the Supreme Court of India refused to strike down the article, but it did acknowledge that it was a “sensitive issue” and that it would be “appropriate” to refer the matter to a larger bench.

In 2018, the Jammu and Kashmir High Court upheld the validity of Article 35A, but it also expressed concerns about its discriminatory nature. The court suggested that the state government should consider amending the article to address these concerns.

The Abrogation of Article 35A

On August 5, 2019, the Indian government revoked Article 35A and Article 370, which granted special autonomy to Jammu and Kashmir, through a Presidential Order. This decision was met with widespread protests and criticism, both within India and internationally.

The government argued that the abrogation of Article 35A was necessary to promote national integration and economic development in J&K. It also claimed that the article was discriminatory and had created a sense of separatism in the state.

Impact of the Abrogation of Article 35A

The abrogation of Article 35A has had a significant impact on the state of Jammu and Kashmir. Some of the key impacts include:

• Increased integration with India: The abrogation of Article 35A has opened up the state of J&K to investment and development from other parts of India.
• Changes in land ownership laws: The abrogation of Article 35A has allowed non-permanent residents to purchase land in J&K, leading to changes in land ownership laws.
• Increased economic activity: The abrogation of Article 35A has led to an increase in economic activity in J&K, with more businesses and investors entering the state.
• Increased security concerns: The abrogation of Article 35A has also led to increased security concerns in J&K, with protests and unrest erupting in the state.

Future of Article 35A

The future of Article 35A remains uncertain. While the Indian government has revoked the article, there are ongoing legal challenges to this decision. The Supreme Court of India is currently hearing petitions challenging the abrogation of Article 35A, and its decision will have a significant impact on the future of the article.

Conclusion

Article 35A has been a controversial provision in the Indian Constitution, with its proponents arguing for its necessity in safeguarding the unique identity and autonomy of Jammu and Kashmir, while its opponents view it as discriminatory and a hindrance to national integration. The abrogation of Article 35A in 2019 has had a significant impact on the state of Jammu and Kashmir, and its future remains uncertain. The Supreme Court of India’s decision on the legal challenges to the abrogation of Article 35A will have a significant impact on the future of the article and the state of Jammu and Kashmir.

Table: Key Arguments for and Against Article 35A

Table: Impact of the Abrogation of Article 35A

This article provides a comprehensive overview of Article 35A, exploring its history, provisions, arguments for and against it, legal challenges, abrogation, and potential future implications. It aims to provide a balanced and informative analysis of this complex and controversial issue.

Here are some frequently asked questions about Article 35A:

1. What is Article 35A?

Article 35A is a special provision in the Indian Constitution that grants the Jammu and Kashmir (J&K) legislature the power to define “permanent residents” of the state and confer special rights and privileges on them. These rights include the right to own immovable property, the right to employment in government services, and the right to scholarships and other benefits.

2. Why was Article 35A added to the Constitution?

Article 35A was added to the Constitution in 1954 through a Presidential Order, without any parliamentary debate or discussion. It was intended to address the unique situation of J&K, which had acceded to India with certain conditions regarding its autonomy.

3. What are the arguments in favor of Article 35A?

Proponents of Article 35A argue that it is essential for safeguarding the unique identity and autonomy of J&K. They contend that it protects the cultural and linguistic identity of the state, ensures political and economic stability, and reflects the historical and political context of the state.

4. What are the arguments against Article 35A?

Opponents of Article 35A argue that it is discriminatory and a hindrance to national integration. They contend that it violates the fundamental right to equality, creates a sense of separatism, hinders economic development, and was added to the Constitution through an unconstitutional process.

5. What were the legal challenges to Article 35A?

Article 35A was challenged in various courts over the years. In 2015, the Supreme Court of India refused to strike it down but acknowledged its sensitivity and suggested referring the matter to a larger bench. In 2018, the Jammu and Kashmir High Court upheld its validity but expressed concerns about its discriminatory nature.

6. What happened to Article 35A in 2019?

On August 5, 2019, the Indian government revoked Article 35A and Article 370, which granted special autonomy to J&K, through a Presidential Order. This decision was met with widespread protests and criticism.

7. What were the reasons for the abrogation of Article 35A?

The government argued that the abrogation of Article 35A was necessary to promote national integration and economic development in J&K. It also claimed that the article was discriminatory and had created a sense of separatism in the state.

8. What are the impacts of the abrogation of Article 35A?

The abrogation of Article 35A has had significant impacts, including increased integration with India, changes in land ownership laws, increased economic activity, and increased security concerns in J&K.

9. What is the future of Article 35A?

The future of Article 35A remains uncertain. While the Indian government has revoked it, there are ongoing legal challenges to this decision. The Supreme Court of India is currently hearing petitions challenging the abrogation, and its decision will have a significant impact on the future of the article and the state of J&K.

10. Why is Article 35A a controversial issue?

Article 35A is a controversial issue because it touches upon sensitive matters related to identity, autonomy, equality, and national integration. It has been a subject of intense debate and legal challenges, with strong opinions on both sides.

Here are some multiple-choice questions (MCQs) about Article 35A, each with four options:

1. What was the primary purpose of Article 35A when it was added to the Indian Constitution?

a) To ensure equal rights for all citizens of India, regardless of their place of residence.
b) To grant special status to the state of Jammu and Kashmir, allowing it to define its own permanent residents and confer special rights on them.
c) To promote economic development in Jammu and Kashmir by attracting investment from other parts of India.
d) To establish a separate legal system for Jammu and Kashmir, distinct from the rest of India.

2. Which of the following is NOT a right granted to permanent residents of Jammu and Kashmir under Article 35A?

a) The right to own immovable property in the state.
b) The right to vote in national elections.
c) The right to employment in government services in the state.
d) The right to scholarships and other benefits offered by the state government.

3. What was the main argument used by proponents of Article 35A to justify its existence?

a) It was necessary to protect the cultural and linguistic identity of Jammu and Kashmir from outside influences.
b) It was essential for ensuring the economic prosperity of the state by attracting investment from other parts of India.
c) It was a necessary step towards integrating Jammu and Kashmir fully into the Indian Union.
d) It was a historical necessity to appease the people of Jammu and Kashmir and ensure their loyalty to India.

4. What was the outcome of the legal challenges to Article 35A before its abrogation in 2019?

a) The Supreme Court of India struck down Article 35A as unconstitutional.
b) The Supreme Court of India upheld the validity of Article 35A but expressed concerns about its discriminatory nature.
c) The Jammu and Kashmir High Court struck down Article 35A as unconstitutional.
d) The Jammu and Kashmir High Court upheld the validity of Article 35A and dismissed all challenges.

5. Which of the following is a significant impact of the abrogation of Article 35A in 2019?

a) The state of Jammu and Kashmir has become fully integrated into the Indian Union, with no special status.
b) The state of Jammu and Kashmir has become a separate country, independent of India.
c) The state of Jammu and Kashmir has been divided into two separate union territories.
d) The state of Jammu and Kashmir has been granted greater autonomy than before.

Answers:

1. b)
2. b)
3. a)
4. b)
5. a)