From women to Valmikis, why certain groups have a problem with J&K's Article 35A

Supreme Court has deferred the hearing on Article 35 (A) by three months, know why the provision has been challenged in the top court

The Supreme Court has deferred the hearing on the batch of petitions challenging the constitutional validity of Article 35A  by 3 months.  On behalf of the Centre, Attorney general KK Venugopa further sought six months time on the issue.  A three-judge bench comprising Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud will hear four petitions demanding the repealment of the contentious provision . The original petition was filed by Delhi-based NGO We the Citizens in 2014. Subsequently, three more petitions were filed, one of which was by Delhi-based Charu Wali Khanna, who pointed out that the Article also discriminates against women.

What is 35 (A)? 

Artcle 35(A) relates to the special rights and privileges of the permanent residents of Jammu & Kashmir. It empowers Jammu and Kashmir legislature to define “permanent residents” of the state along with their special rights and privileges. The law restricts outsiders from acquiring land and other properties in Jammu & Kashmir.

The bone of contention

Article 35 (A) was added to the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.

Currently, laws framed by the Jammu and Kashmir legislature exercising powers under Article 35A cannot be challenged on the ground of violation of fundamental right to equality of Indian citizens from other states.

The petitioner in the case has pleaded before the court that Article 35A was never presented before Parliament for approval. It has been challenged on the grounds that it was not brought through constitutional amendment as required under Article 368.

The petitioner has contended that the presidential order first limits the powers of Parliament to make laws for Jammu and Kashmir and then allows the provision on permanent settlement.

“The President of India under the garb of a temporary provision i.e. Article 370 (1) cannot amend the Constitution by incorporating a new Article of permanent nature,” reads the petition.

Article 35A was inserted in 1954 through the “Constitution (Application to Jammu & Kashmir) Order 1954”. These orders were passed according to powers given to the President under Article 370.

Defining permanent residents

J&K assembly defines Permanent Resident as a person who was a state subject on May 14, 1954 or who had been a resident of the state for 10 years and has “lawfully acquired immovable property in the state.”

Why is it considered discriminatory?

  1. Disallows purchase of land and properties for outsiders

A person who is not a permanent resident of Jammu and Kashmir  cannot buy or own properties in the state, Also, they do not have the right to either cast their vote in Assembly elections. Neither can they contest elections.

2. Discriminatory towards woman

Under the original provisions of Article 35A, women from Kashmir on marrying outsider lose all her rights and privileges. However, a 2002 ruling by the Jammu and Kashmir High Court held that the women would continue to enjoy their rights and privileges even if they married an outsider but their children would have no claim in succession. This is in sharp contrast with a man who marries a outsider, even his children continue to enjoy property rights.

4. Discriminatory towards SC/ST 

Not only women, Article 35(A) has adversely affected the empowerment of protected communities in the state. People from Gujjar and Bakerwal communities got Scheduled Tribe status way back in 1991, but they did not get political reservation in the state legislature despite the fact that they were the third largest group after Kashmiri Muslims and Dogras because of Article 35A.

The same is true for the Valmiki community as well.  Members of Valmiki community are not eligible to apply for government jobs, their children cannot apply in state government run professional institutions and even the educated among them have been relegated to the work of “safai karamchari”.

Who’s supporting and opposing Article 35(A)?

The RSS and BJP are opposed to Article 35A because it bars non-state subjects from settling and buying property in J&K.  The Kashmiri separatists, the ruling Peoples Democratic Party (PDP), the National Conference and the J&K government are among those against the scrapping of Article 35A. On Sunday, as per a PTI report, separatist leaders Syed Ali Shah Geelani, Mirwaiz Umar Farooq and Mohammad Yasin Malik issued a joint statement urging the people of Kashmir to launch a “mass agitation” if the Supreme Court strikes down Article 35A.