Srinagar, August 9: Kashmir’s stability, peace, safety and security mainly gets in danger after a terror attack, stone pelting incident or during counter terrorist operations. But this time stability of the valley is at stake due to Article 35-A, a constitutional provision that defines special privileges enjoyed by permanent residents of Jammu Kashmir in matters related to employment, acquisition of immovable property, settlements and scholarships.
Let’s understand what is Article 35-A and why it is important for Kashmir.
Article 35A of the Indian Constitution is an article that empowers the Jammu and Kashmir state's legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. It is added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 - issued by the President of India, "in exercise of the powers conferred by" clause (1) of Article 370 of the Constitution, with the concurrence of the Government of the State of Jammu and Kashmir.
The Constitution (Application to Jammu and Kashmir) Order, 1954 was issued by President Rajendra Prasad under Article 370, with the advice of the Union Government headed by Jawaharlal Nehru. It was a subsequent to the '1952 Delhi agreement', reached between Jawaharlal Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which dealt with the extension of Indian citizenship to the Jammu and Kashmir "state subjects".
Article 35 A states that "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:
(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) 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."
Controversies erupted after Article 35 A and Article 370 was challenged in Supreme Court
A Supreme Court bench led by Chief Justice JS Khehar on Tuesday asked the central government to explain whether Article 370 of the Constitution, which grants special status to Jammu and Kashmir, was a temporary provision that is no more valid.
The chief justice Khehar also questioned the Centre’s decision to delegate matters such as citizenship to the state government and the state’s decision to have a separate Constitution, when it had ratified its accession to India unconditionally. The three-judge bench, also comprising Justices Adarsh Kumar Goel and DY Chandrachud, was dealing with a petition filed by lawyer Anil Kumar Jha, drawing the court’s attention to the issue.
Notably, Anil Kumar Jha in his petition claimed that Article 370 was a temporary provision which would have lapsed with the passage of time. The Delhi High Court had dismissed his public interest litigation at the preliminary stage on April 11. This later prompted him to approach the apex court.
According to the petition, Constituent Assembly debates show that the temporary provision was at the most valid only till the time the Constituent Assembly itself existed. The temporary provision would have lapsed after the Constituent Assembly of India ceased to exist, and in any case, when the Constituent Assembly of J&K lapsed, he argued.
In an earlier case, the apex court had dismissed another plea filed by one Sampat Prakash, who argued that Article 370 had ceased to operate once the Jammu & Kashmir Constitution came into force. However, the latest petition argued that the temporary provision of Article 370 is deemed to have lapsed automatically either in February 1954, when the state ratified the accession, or maximum in 1957 when the Constituent Assembly of J&K was dissolved.
In the alternative, it would have been valid till the Constitution of J&K continued to exist with the approval of the President, the petition said. But it was yet to be so approved. Jha also claimed that as per the Indian and the J&K Constitutions, the state is an integral part of India. Therefore, the President could declare Article 370 in operative, he argued. He also questioned the validity of the J&K Constitution on the ground that it was yet to be ratified either by the President or Parliament.
Meanwhile, Chief Minister Mehbooba Mufti called on opposition National Conference (NC) President, Farooq Abdullah at his Gupkar residence and discussed the issue of Article 35-A on which the Supreme Court is presently hearing a petition for abrogating it. According to the sources, Abdullah told the CM Mufti to reach out to other opposition parties on the issue as well.
Farooq Abdullah has already said the existence of Jammu Kashmir would be under threat and witness a 2008-like agitation if Article 35-A was abrogated. While, Mehbooba had warned New Delhi against tinkering with Article 35-A saying that if it was tampered with, no one, neither the National Congress nor the Peoples Democratic Party (PDP), who hold tricolor in Kashmir despite risks and attacks to their workers, would be left to hold it.