The debate surrounding Article 35A of the Indian Constitution has gained renewed attention due to its role in granting special privileges to permanent residents of Jammu and Kashmir (J&K). This provision, while providing certain benefits to the state’s residents, has also been criticized for its potential infringement on fundamental rights and its implications for the unity of the nation.
About Article 35A
Article 35A is a unique provision that empowers the J&K Legislature to define ‘permanent residents’ of the state and extend specific privileges to them. These privileges encompass various areas such as public sector employment, property acquisition, scholarships, and public welfare. The provision is rooted in historical precedent, tracing back to the princely state of J&K in 1927. It was introduced to the Indian Constitution through a Presidential Order in 1954, following the Delhi Agreement between the central government and the then Prime Minister of J&K, Sheikh Abdullah.
Controversies Surrounding Article 35A
One of the primary sources of contention with Article 35A lies in its unconventional nature. Unlike most constitutional amendments, it does not appear in the main body of the Constitution and was introduced without following the typical parliamentary route of lawmaking. This has raised concerns about the validity of the provision under Article 368, which empowers only the Parliament to amend the Constitution. Critics argue that Article 35A contradicts the intended temporary nature of Article 370, which was meant to facilitate the establishment of normalcy and democracy in J&K.
Constitutional Implications
Critics of Article 35A contend that it creates a “class within a class” of Indian citizens, as it differentiates between residents of J&K and citizens of other states. This differentiation is seen as a violation of fundamental rights guaranteed by the Constitution, including the right to equality (Article 14), the right to freedom of movement and residence (Article 19), and the right to life and personal liberty (Article 21). Moreover, the provision has faced criticism for its gender discriminatory nature, as it denies property rights to women who marry individuals without permanent resident certificates.
Evolution of Articles 370 and 35A
The constitutional landscape changed significantly with the issuance of The Constitution (Application to Jammu and Kashmir) Order 2019. This order effectively revoked the special status of J&K, extending all provisions of the Indian Constitution, including fundamental rights, to the region. Given that Article 35A is tied to Article 370, the discriminatory aspects of the former became unconstitutional under this order.
CJI’s Perspective
Chief Justice of India, D.Y. Chandrachud, highlighted the dichotomy created by Article 35A. While it granted special privileges to permanent residents, it simultaneously marginalized non-residents. Moreover, the provision shielded these privileges from judicial review, further fueling the debate on its compatibility with the Constitution. The CJI’s inquiry into the adherence to federalism principles during the abrogation of Article 370 raises critical questions about the balance of power between the central government and the state.
UPSC Mains Questions
- In light of the revocation of Article 370 and the subsequent invalidation of Article 35A, what challenges and opportunities does the new constitutional framework present for the region?
- How can a balance be struck between preserving the unique cultural identity of J&K and upholding the principles of equality and unity enshrined in the Indian Constitution?
- To what extent does the abrogation of Article 35A signify a shift in the federal structure of India, and what implications might this have for the governance of other states?
