What is Article 35A? Why is it Challenged? What are the Arguments on Scrapping Article 35A?

Article 35A is the provision in the constitution of India that approves the J&K legislature to define who all are the permanent residents of the Jammu and Kashmir state. It was issued under the Article 370 by adding through the constitution (Application to Jammu and Kashmir) order, 1954.

It grants certain privileges –

Employment under the state government. No one from outside the state can apply for jobs in state government. For instance, a person from the state of Maharashtra (or any other state or Union Territory in India) cannot apply for a state government job in Jammu and Kashmir.

No acquisition of unmovable property in the state. No one from outside the state can buy or own the land. For instance, a person from the state of Maharashtra (or any other state or Union Territory in India) cannot purchase a land or property in Jammu and Kashmir.

Settlement in the state. No one from outside the state can settle here permanently. For instance, a person from the state of Maharashtra (or any other state or Union Territory in India) can come and go but cannot settle here permanently.

Right of Scholarship and other such forms of aids from the state government. Privileged for state subjects only.

Why Is Article 35A Being Challenged?

In 2014, an NGO – “We the Citizens” challenged Article 35A in the Supreme Court. Now that the Article restricts outsiders from acquiring asset and properties in Jammu and Kashmir, it is believed that it is inequality to the people from rest of India as they too have the right to stay, acquire lands and settle in the state. However, the people in support of the Article believes scrapping ‘it’ would alter the demography of the state.

What are the Arguments in favour of scrapping Article 35A?

  • Their argument begins with the statement that Article 35A was not a part of the original Constitutionand was added later in the year 195 by a presidential order.
  • Next, their argument is, Article 370 under which Article 35A comes is itself a temporary provision
  • Besides, if a woman marries a man who doesn’t have PRC (Permanent Resident Certificate), her heir is not given PRC
  • The definition and characterization can be reformed by the state government if they pass a law with two third majority.
  • Article 35A contradicts Article 14 of the Indian Constitution that preaches ‘Equality for all.’

What are the Arguments against scrapping the Article?

  • It is seen as an attack on the special status given to the state of Jammu and Kashmir by the state government.
  • According to them, Article 35A cannot be throw down the gauntlet on the basis that it affects the fundamental privileges of the other Indian Citizens.
  • Kashmiris are worried that scrapping the article would increase the influx of Hindus especially the Hindu nationalist groups.
  • Now that the right through the article are only around 4 aspects – Settlement, Land, Employment, and Scholarship, they point out that the rights of the state legislature are not unlimited in Article 35A.

The for and the Against

The Rashtriya Swayamsevak Sangh (RSS) and the political party Bharatiya Janata Party (BJP) are in favour of scrapping Article 35A. However, People’s Democratic Party (PDP), the Kashmiri separatists, the National Conference are against the scrapping of the Article. Now if the SC order goes against the article, some separatist leaders have commended the people in the state to launch a mass agitation.

What is Bench’s take on Article 35A, the offshoot of Article 370?

The Supreme Court of India was prepared to have a dialog on scrapping Article 35A. However, the state government opposed such a move. The matter has now been referred to three judge bench – CJ Dipak Misra, Justice DY Chandrachud and Justice AM Khanwilkar.

Both the center and the Jammu and Kashmir government asked the apex court not to pass an interim order on this sensitive matter. The SC deferred hearing pleas challenging the validity of the article and posted the case for hearing on August 6.

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