What is all the fuss about Article 35A of the Indian Constitution? Well, let's take a look at everything which makes it so controversial.
Indian Constitution is unique in its content despite being borrowed from almost every constitution of the world has several features that distinguish it from the constitution of other countries.
The constitution of India is the lengthiest in the world and contains 448 articles which are divided into 25 parts and 12 schedules. One such article is Article123 in the union government which empowers the president to pass the ordinance when the parliament (Rajya Sabha and Lok Sabha) not in session. Similarly, in the state government, this power is vested with the governor for that particular state (Article213). Although, India has only one constitution; "The constitution of India" applicable to the territory of India, the exception being state of Jammu and Kashmir which has its own constitution came into effect into 26 January 1957.
HISTORICAL BACKGROUND
Let’s understand where the demand arose:
Before partition in 1947, Jammu and Kashmir was a princely state under the British Paramountcy. The people of the princely states were "state subjects". In the case of Jammu and Kashmir, the political movements in the state started and in particular, the Muslim community had launched a "Kashmir for the Kashmiri" movement demanding that only Kashmiris should be employed in state government jobs. Legal provisions for the recognition of the status were enacted by the Maharaja of Jammu and Kashmir.
After partition also the demand continues to be the same,
Following the accession of Jammu and Kashmir to the Indian Union on 26 October 1947, The Maharaja ceded control over defense, external affairs and communications (the 'ceded subjects') to the Government of India.Article 370 of the Constitution of India is devoted wholly to Jammu and Kashmir (for details https://cricketinindopak.blogspot.com/2019/02/what-is-article-370-of-indian.html?m=1). The State and the Union in 1952 ratified Delhi 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 (Definition of permanent resident is explained in The Jammu and Kashmir constitution of 1956).How Article 35A came into effect:
Article 35A is one of those by president's order:
Article 35A of the Indian Constitution is an article that empowers the Jammu and Kashmir state's legislature to define “permanent resident” of the state and provide special rights and privileges to those permanent residents. It was added to the Constitution through a Presidential Order in 1954 and came into existence in 1956.
What is exactly written in 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."
Now look at why demand to abolish Article 35A rising day by day:
- The violation of the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property, if the woman marries a man that is not a permanent resident.
- It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste and Scheduled Tribe people who have lived there for generations (e.g the valmikis from Punjab even after six decades are deprived of their rights and continues to work as scavengers).
- The industrial sector & whole private sector suffers due to the property ownership restrictions. Good doctors don't come to the state for the same reason.
- Children of non-state subjects(nonpermanent residents) do not get admission to state colleges.
- It ruins the status of West Pakistani refugees. Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu and Kashmir, they cannot enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu and Kashmir.
- 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.
The above are obviously the reasons demanding its abolition but the bigger issue is it somehow creating a rift between the permanent residents and non-permanent residents (who feels isolated and undone by these act of separation in their own backyard) and between the locals and the rest of India
The Purpose?
Article 35A was added to the constitution to give the local people a chance and opportunity to maintain and strengthen their culture and tradition. As time passed by it hasn't served its purpose and instead created more problems than providing the solution. The article is giving the permanent residents complete freedom and authority to utilize their skills to the best of their abilities and showcase the uniqueness of their tradition to the whole world. Is the freedom and authority which they enjoy taking them into the right direction is the question that needed to be answered as soon as possible.
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