The Supreme Court (SC), on February 25, has listed to hear the petitions challenging the Constitutional validity of Article 35A, from February 26 to 28. There are speculations that the government may take it’s stand on Article 35A and put the provision to an end. Article 35A empowers the Jammu and Kashmir state’s legislature to define “permanent resident” of the state and provide special rights and privileges to them. The special rights and privileges include acquiring immovable property, receive public aid, government jobs and get scholarships. However, this article prohibits the non residents of the state from acquiring all these rights and privileges. The provision also makes it almost impossible for a non resident to become the resident of the state.
‘We the Citizens’, a Delhi based NGO had filed a petition challenging the Constitutional validity of article 35A in the Supreme Court in 2014. According to the petitioners, the provision was unconstitutionally added to the Constitution which never floated before the Parliament and came into effect immediately.
The Article was added to the Constitution by Presidential order in 1954. It was a treaty between Maharaja of Kashmir, Hari Singh, and the Republic of India. It was incorporated in the Constitution by the then President of India, Dr. Rajendra Prasad, after the Delhi agreement (the 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), which was signed by the then Prime Minster Jawaharlal Nehru and Prime Minister of Jammu and Kashmir, Shaikh Mohammed Abdullah, in 1952.
Article 35A is often considered to as discriminatory towards women as it disqualifies all the rights and privileges under this article if a woman marries a non resident. However, according to the judgement passed by the J&K High Court in October 2002, a permanent resident woman, who marries a non resident does not lose her rights. However, the children of such women won’t be the permanent residents of the state and cannot enjoy the rights defined under article 35A.
In another case, two Kashmiri women had argued in the apex court that the article 35A had disenfranchised their children. The SC had sent notices to the centre and the state in July 2017 seeking their reply on the dispute. On May 14, 2018, SC deferred the hearing on the petitions. The SC again deferred the hearing and listed it for hearing on August 6 then to August 27 and then to August 31, 2018. However, the SC will hear the petitions from February 26 to 28 this year.
Those in favour of Article 35A fear that revocation of the article will lead to further erosion of J&K’s autonomy and affect the demographic change in the Muslim majority state. They fear about the possibility of Hindu majority in the state as the revocation of the article will allow citizens of all over India to acquire or sell properties in J&K, seek public aids, etc. Moreover, Peoples Democratic Party (PDP) leader Mehbooba Mufti said last year that Article 35A should not be tinkered with, there would be no one to hold the tricolour if provisions regarding special status to J&K residents were altered.