What is Article 35A and why it is important for Jammu and Kashmir

The Government and Opposition of Jammu and Kashmir have united against the possible retracting of Article 35A which gives the state special rights and privileges. 

At a recent event in Delhi, state CM Mehbooba Mufti said if Article 35A was tinkered with, there will be no one in Kashmir to uphold the national flag.

Main Opposition party National Conference chief Farooq Abdullah warned that if the Centre does any tinkering with the existing arrangement concerning Jammu and Kashmir, there would be a huge protest, much bigger than what was seen during the Amarnath Shrine land controversy when his son Omar Abdullah was the Chief Minister of the state.

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What is Article 35A?

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. The article draws its relevance and affects effectiveness of Article 370.

Full text of Article 35A 

"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."

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What is the debate around Article 35A?

The Article has come under focus recently after a Delhi-based NGO 'We the Citizens' filed a petition demanding that Article 35A be repealed+ because of its "unconstitutional" character.

Soon after, two Kashmiri women approached the Supreme Court, challenging the clause as they contended that it had disenfranchised their children.

Those who oppose Article 35A claim that 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.

During the hearing of the petition by the NGO, Attorney general K K Venugopal, appearing for the Centre, had told court that given the "sensitive" nature of the issue, the Centre wanted a "larger debate" on it.

He also said that the matter be referred to a larger bench given the constitutional issues involved; the court agreed, saying a three-judge bench would hear the matter in six weeks (which is to be completed end August).

What court says on Article 35A? 

In a similar case in July 2015, an RSS-backed think-tank called the Jammu & Kashmir Study Centre first came up with the idea to challenge Article 35A in the Supreme Court. In that case, the division bench of J&K high court, comprising Justice Muzaffar Attar and Justice A M Magrey, enumerated the importance of Article 35A and said this law, which has been applied to J&K, clarifies the already-existing constitutional and legal position and does not extend something new to the state.

The court had observed that Article 35A was only a clarificatory provision to clear the issue of constitutional position obtaining in the rest of country in contrast to J&K.

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Why debate Article 35A now? 

The special privileges to Jammu and Kashmir were given in 1954 through a presidential order, then why debate the re-appeal now in 2017? The reason lies in BJP's strength at Centre. 

Repealing Article 370 has been on the agenda of the BJP and RSS for decades. For long the BJP said that the day it came to power in New Delhi on its own, it would resolve the Kashmir issue. Its pet prescription has been doing away with Article 370 of the Constitution, which was inserted in after the princely state of Jammu and Kashmir signed the instrument of accession with India in 1947 following invasion by Pakistan.

Now that the BJP is heading the strongest government at the Centre in 30 years after having secured majority of its own in the last Lok Sabha elections, the clamour for repeal of Article 370 has been growing in the Sangh parivar. But, it is not as simple as it may seem.

Thus, the Modi Government has shifted the focus to another provision of the Constitution - Article 35A. 

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