On August 6, the Supreme Court will hear the bunch of petitions challenging the validity of this constitutional provision
There is anxiety in Kashmir again over the status of Article 35 A. On August 6, the Supreme Court will hear the bunch of petitions challenging the validity of Article 35A of the Constitution.
The Supreme Court had earlier deferred the hearing of the bunch of petitions challenging the provision of Article 35A in Jammu and Kashmir. With this, the deeply tense state of affairs in Kashmir had eased, but not the anxieties.
As the date of hearing draws near, the issue has again agitated politicians, academics, state bureaucrats, lawyers, journalists, professionals of all hues, and all civil society members, who have joined efforts to protect the validity of Article 35 A . Kashmiri political parties have all warned that they will close ranks against any attempts to dilute this constitutional provision, forgetting their power and ideological battles.
Prominent political voices in Kashmir are speaking in unison on the issue, discussing ways and means for protecting Article 35 A on political and legal fronts.
Meetings are being held almost daily on the issue in Srinagar and other cities and towns of Kashmir. Members of the civil society have collectively and individually urged the Governor to defend the provision in the Supreme Court by hiring top legal luminaries. There is widespread feeling in Kashmir that Article 35 A has been challenged in the Supreme Court to change the demography of Kashmir, and to deprive the Kashmiris of right to land and employment in the state, and other benefits.
Mainstream political groups in Kashmir are contemplating to approach the Supreme Court to regard them as parties in the case. In meetings that have been held in Srinagar to discuss the issue over the last few days, senior Kashmiri politicians said that “it is their duty to protect the constitutional provisions guaranteeing special position to the state”.
Hurriyat chief Mirwaiz Umar Farooq has warned of massive agitation in Jammu and Kashmir if the special rights accorded to the state by the Constitution of India were taken away. The Joint Resistance Leadership (JRL) of Kashmir has called for shutdowns on August 5 and 6 in protest against attempts to question Article 35 A.
In July 2014, an NGO named ‘We the citizens’ filed a petition in the Supreme Court challenging the validity of Article 35 A on the ground that it was inserted in the Indian constitution through a presidential order, rather than after complying with the elaborate procedure prescribed under article 368 of Indian constitution.
Subsequent to this petition, three more classeses of persons filed separate petitions challenging the validity of Article 35 A on diverse grounds. Charu Wali Khanna, a lawyer and former member of the National Commission for Women, challenged Article 35 A and also Section 6 of the J&K Constitution (which deals with “permanent residents provisions” of the state). Her argument was that both these clauses deny property right to a woman who had married a non-state subject, and also denied the same to her children. West Pakistan refugees challenged Article 35 A on the ground of discrimination in spheres like acquisition of property, service & voting rights.
The hearing by the Supreme Court on August 6 comes amidst the lack of an elected government in the state. Jammu and Kashmir was put under Governor’s rule after the BJP pulled out of the coalition government with PDP.
According to news reports in a section of the media, Governor NN Vohra has requested the Centre to defer the hearing on Article 35A in the Supreme Court until the elected government takes over the reins of the state. He has informed the Centre that sensitivities and sensibilities regarding Section 35A of the Constitution are high in the state.
What is Article 35 A
Article 35A, which was added to the Constitution by a Presidential Order in 1954, accords special rights and privileges to the citizens of J&K.
The Article empowers the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provides special rights and privileges to those permanent residents. The State Subject Law ‘confers rights to the citizens of the state in respect of their exclusive claim to the acquisition, sale, lease, mortgage of immovable property, claims for service and scholarships, allotments of housing plots, adult suffrage, membership of the local bodies and eligibility for the benefits under self-employment.’