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What is Article 35 A and why is its scrapping being sought

By Vicky
|

Article 35 A of the Indian Constitution for Jammu and Kashmir is once again in the news with the Supreme Court agreeing to hear a plea in this regard. A plea was filed in the SC seeking the scrapping of the article for the state as it is discriminatory in nature for women who are stripped off the right to own property if they marry someone from outside the state.

What is Article 35 A and why is its scrapping being sought

What is Article 35 A and why it is a bone of contention. Let us find out:

Article 35A empowers the Jammu and Kashmir government to define "permanent residents" of the state and provide special rights and privileges to those permanent residents.

The article was added to the Indian Constitution through a Presidential order.

Prior to 1947, Jammu and Kashmir was a princely state under the British Paramountcy.

The people of the princely states were "state subjects", not British colonial subjects.

In the case of Jammu and Kashmir, the political movements in the state in the early 20th century led to the emergence of "hereditary state subject" as a political identity for the State's peoples, and the legal provisions for the recognition of the status were enacted by the Maharaja of Jammu and Kashmir between 1912 and 1932.

The 1927 Hereditary State Subject Order granted to the state subjects the right to government office and the right to land use and ownership, which were not available to non-state subjects.

Following the accession of Jammu and Kashmir to the Indian Union on 26 October 1947, The Maharaja ceded control over defence, external affairs and communications to the Government of India.

Article 370 of the Constitution of India and the concomitant Constitutional Order of 1950 formalised this relationship.

Discussions for furthering the relationship between the State and the Union continued, culminating in the 1952 Delhi Agreement, whereby the governments of the State and the Union agreed that Indian citizenship would be extended to all the residents of the state but the state would be empowered to legislate over the rights and privileges of the state subjects, who would now be called permanent residents.

Following the adoption of the provisions of the Delhi Agreement by the Constituent Assembly of Jammu and Kashmir, the President of India issued The Constitution (Application to Jammu and Kashmir) Order, 1954, through which Indian citizenship was extended to the residents of the state, and simultaneously the Article 35A was inserted into the Indian Constitution.

"Saving of laws with respect to permanent residents and their rights. - Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:

Defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir.

Conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects.

Employment under the State Government

Acquisition of immovable property in the State

Settlement in the State

Right to scholarships and such other forms of aid as the State Government may provide,

shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part."

Main objections:

t facilitates the violation of the right of women to 'marry a man of their choice' by not giving the heirs any right to property, if the woman marries a man not holding PRC. Therefore, her children are not given Permanent Resident Certificate and thereby considering them unfit for inheritance - not given any right to such a woman's property even if she is a permanent resident.

It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste and Scheduled Tribe people who have lived there for generations. The Valmikis who were brought to the state during 1957 were given Permanent Resident Certificates on the condition that they and their future generations could stay in the state only if they continued to be safai-karmacharis (scavengers). And even after six decades of service in the state, their children are safai-karmacharis and they have been denied the right to quit scavenging and choose any other profession.

The industrial sector & whole private sector suffers due to the property ownership restrictions. Good doctors don't come to the state for the same reason.

Children of non-state subjects do not get admission to state colleges.

It ruins the status of West Pakistani refugees. Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu and Kashmir, they cannot enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu and Kashmir.

It gives a free hand to the state government and politicians to discriminate between citizens of India, on an unfair basis and give preferential treatment to some by trampling over others, since the non-residents of the state are debarred from buying properties, getting a government job or voting in the local elections.

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