India
Article 35A, the main provision that empowers Article 370, was incorporated in the Constitution through a Presidential Order on May 14, 1954, without the knowledge of Parliament, under the Jawaharlal Nehru regime
They say the devil in Kashmir is not just Article 370, but Article 35A, brought into effect by first PM Jawaharlal Nehru in 1954 bypassing Parliament. It yanks Kashmir loose from mainstream India. MyNation examines the piece of legislation and what it means.
- It is considered to be the real devil that empowers Article 370. It is also called the soul of Article 370, which gives J&K special status.
- It is it the basis of all the special provisions envisioned for Jammu and Kashmir and its citizens espoused in Article 370.
- Article 35A allows the state to grant special privileges and rights to its ‘permanent residents’, to the exclusion of others living in the state of Jammu and Kashmir.
- Article 35A was incorporated in the Indian Constitution through a Presidential Order on May 14, 1954, without the knowledge of Parliament, which has the sole right to amend the Constitution under Article 368.
- Article 35A enables the state Assembly of J&K to define who are the 'permanent residents' of the state and thus confer upon them special rights and privileges. The ambit of the definition of permanent residency was deliberately kept narrow to exclude mostly non-Muslims and maintain the exclusivity of the state as separate from that of the nation.
- This distinction being arbitrary and archaic, the permanent residents were given discriminatory powers. Restrictions were placed on non-state subjects in public employment, voting rights, rights of inheritance, acquisition of property, settlement in state, even extending to such rights as claims to scholarships and admission to colleges.
- Permanent residents have enhanced rights, while others do not even have fundamental rights under Article 35A.
- The worst affected are women who marry non-state subjects. They not just lose their right to residency in the state, but even their children are considered outsiders and not eligible to permanent residency. Such women do not even have the right to inherit property from their families.
- Former National Commission for Women member Charu Wali Khanna is amomg many women who have challenged this in SC. She produced anecdotal evidence of her residency of the state. Another such challenger is Seema Razdan Bhargav, has challenged Article 35A on grounds of “blatant gender discrimination”.
- West Pakistan refugees, 90% of whom are dalits who came to India in 1947, are not entitled to Fundamental Rights guaranteed under the Constitution.
- Because of Article 35A, several empowering provisions of the Constitution such as Right to Education, Right to Information, have been denied to non-residents.
- While it has long been mythically believed that Article 370 confers special status on the state, it is Article 35A that creates special categories. Article 370 was only a temporary provision.
- A large segment of experts considers Article 35A as an outrage on the Constitution of India.
- Article 35A was inserted in the Constitution by way of a constitutional amendment which ironically never went to Parliament and was just an executive fiat.
- Ironically, it is placed in Part III of the Constitution that deals with Fundamental Rights while it is violative of these very human rights.
- Owing to Article 35A, a non-permanent resident of J&K can vote in Lok Sabha elections, but not in local body elections. One can become the Prime Minister of the country, but cannot vote in the state Assembly elections. The who do not have Permanent Resident Certificate (PRC) can become IAS and IPS officers, but cannot find government employment in the state.
- The state has suffered due to such restrictions. Its medical infrastructure has crumpled as the private sector has refrained from venturing here as they cannot acquire land for hospitals. Famed doctors do not come to the state as they cannot own property.
- Industrialisation has suffered for the same reason, as has tourism. No one can build a hotel from outside or own and to set up any manufacturing unit.
- Children of non-PRC subjects do not get admission to local colleges.
- The Valmikis who were brought to the state during 1957 strike by ‘safai-karmacharis’ in the state too have been suffering a bleak existence. They were given PRC on the precondition that they and their future generations would be allowed to stay in the state only when they stuck to being ‘safai-karmacharis’. Their children, many of them highly educated, continue to be ‘safai-karmacharis’.
- Article 35A came into being via a Presidential Order on May 14, 1954 by then President Rajendra Prasad. The order was called the Constitution (Application to Jammu and Kashmir) Order 1954. It came into effect immediately and superseded previous Constitution (of India) (Application to Jammu and Kashmir) Order 1950.
- Besides other modifications, the new order ‘added’ a new Article 35A to the Constitution of India even as addition or deletion of an Article is equal to an amendment to the Constitution which only Parliament is authorised to carry out through voting of both Houses under its powers laid down in Article 368. Article 35A was never presented before Parliament.
- When while the Indian Constitution lays down that the President of India does not have legislative powers, Prasad became Parliament himself on the suggestion of then Prime Minister Jawaharlal Nehru.
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