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Explained: Why Article 35A becomes talking point whenever Jammu and Kashmir issue is discussed

Article 35A, which was added in the Constitution by a 1954 Presidential Order, gives special rights and privileges to permanent residents of Jammu and Kashmir and bars people from outside the state from owning any immovable property in the state. Here's an explainer

Arshi Aggarwal Arshi Aggarwal @arshiaggarwal
New Delhi Updated on: August 03, 2019 18:23 IST
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Article 35A is something we are getting to hear a lot about over the last few days. What is the deal all about? Read on to know more.

What is Article 35A?

Incorporated into the Constitution in 1954, Article 35A is a provision that gives special rights to Jammu and Kashmir’s permanent residents. It bars people from outside the state from buying or owning immovable property there, settle permanently, or avail themselves of state-sponsored scholarship schemes. It also forbids the J-K government from hiring people who are non-permanent residents. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land. Article 35A was added to the Constitution through a presidential order of 1954 with the then J&K government's concurrence.

Also read | Tampering Article 370, Article 35A will render Treaty of Accession null & void: Mehbooba Mufti

What is the controversy over Article 35A?

Impugned on several accounts, one of the major contention raised against the constitutional validity of the provision was - how did the Parliament pass Article 35A before it being inserted into the Constitution. The counter-argument by some said the President was authorised under the provisions of Article 370 to insert such an Article for the protection of the rights of state subjects of Jammu and Kashmir. 

According to the petitioner, Article 35A should be held 'unconstitutional' as the President could not have 'amended the Constitution' by way of the 1954 order, and that it was only supposed to be a 'temporary provision'.

The Jammu and Kashmir government has contested the petition, saying the President had the power to incorporate a new provision in the Constitution by way of an order.

Some call Article 35A 'discriminatory' against J&K women, because it disqualifies them from their state subject rights if they married non-permanent residents. However, in a landmark judgment in October 2002, the J&K High Court held that women married to non-permanent residents will not lose their rights. The children of such women, however, don't have succession rights. 

Also read | J&K govt seeks SC's nod to seek adjournment of hearing on pleas challenging Article 35A

Can Article 35A be revoked? 

Legal experts say that the article cannot be revoked as Article 35A was issued in exercise of the powers conferred by Article 370 (1) of the constitution, basis which the state enjoys its autonomy. These two articles are the constitutional connection between Jammu and Kashmir and the Central government and any tinkering with them will render the Treaty of Accession null and void. The ruler of Jammu and Kashmir Maharaja Hari Singh signed this treaty in October 1947 agreeing to accede to the Dominion of India.

"Article 370 is the constitutional connection between J&K & Indian Union. The instrument of accession is contingent on Article 370 which is inextricably linked to Article 35A. Any tampering will render Treaty of Accession null & void," Mehbooba said in a series of tweets.

The High Court of Jammu and Kashmir had in October 2015 ruled that the Article 370 cannot be annulled as the clause (3) of the article bestows the power to rescind the article upon the state constituent assembly.

Also read | Having a separate constitution for Jammu and Kashmir was an aberration: NSA Ajit Doval

But, as the constituent assembly, was dissolved in 1957, it did not take any such move to revoke the article; and the article acquired a permanent status irrespective of being designated as a temporary provision of the Constitution.

The Supreme Court in 2018 had opined on the similar lines and said that since the state constituent assembly has been discontinued, the President of India would not be able to implement or execute the obligatory provisions required for its withdrawal.

What happens if the article is revoked? 

In case the Article 35A is repealed, it will allow people from rest of the Indian states to acquire property in Jammu and Kashmir, settle there just like any other state in the country with equal rights. Pakistan claims that scrapping the article is India's attempt to change the demography of the region. 

"Pakistan condemns any such attempts as these are clearly aimed at bringing about demographic changes in Jammu and Kashmir," Pak Foreign Office (FO) said in a statement. It claimed that any such move would be a blatant violation of the international law and the relevant United Nations Security Council resolutions, which prohibit introducing material changes to the disputed territory.

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