(This explainer was first published on 14 August 2017 and is being reposted from The Quint’s archive in the backdrop of the escalating security situation in Kashmir.)
As Kashmir remains on edge following the suspension of the Amarnath Yatra, and many prominent leaders being placed under house arrest, speculation is rife on social media and select news portals that the abrogation of Article 35A could be on cards.
Article 35A of the Constitution protects any laws in Jammu & Kashmir relating to the definition and privileges of permanent residents from being challenged as discriminatory or unconstitutional.
As an example of these privileges, Jammu & Kashmir restricts anyone except permanent residents from acquiring immovable property. Article 35A grants the Legislative Assembly in the state the power to make such a restriction, and prevents a challenge against this on the basis that this is inconsistent with the laws that apply to other citizens of India.
This provision has been challenged in the Supreme Court in several petitions, which came up for hearings for the first time in August 2018.
Here’s what the cases are about, and why this issue is being used as a political tool in Jammu & Kashmir.
Argument No. 1 Against Article 35A
It Discriminates Against Women
If a Kashmiri man marries a non-permanent resident, he can bequeath his property to his children. However, if a Kashmiri woman who is a permanent resident marries a non-Kashmiri, her children lose their claim over her ancestral property.
Charu Walikhanna desires to build a house in Jammu and Kashmir to rediscover her Kashmiri Pandit roots. But her marriage to a non-Kashmiri demotes her to the status of a ‘non-permanent resident’ of her home state. And a non-permanent resident, as per Article 35A of the Indian Constitution, cannot acquire immovable property, vote, seek a government job or admission to a government-aided educational institute in Jammu and Kashmir. Charu Walikhanna’s petition challenges Article 35A on the grounds that it is discriminatory against women.
But there’s still room for further clarification. The full judge bench of the J&K High Court did not elaborate on whether the children of women married to non-Kashmiris would also be considered permanent residents who could inherit the property.
Incidentally, the law that gives ‘state subjects’ or ‘permanent residents’ special rights and privileges is a direct import from a 171-year-old agreement between the first Dogra ruler of J&K, Gulab Singh and the East India Company.
It was incorporated under Article 370 through a constitutional order signed by Rajendra Prasad in 1954.
Argument No. 2 Against Article 35A
It Does Not Have Parliament’s Approval
A constitutional order is essentially an expansion of an existing provision that does not need to be voted on, or need the approval of the Parliament.
That Article 35A was included in the Constitution through a constitutional order and not with the Parliament’s approval (Article 368) is at the heart of the petition filed by a Delhi-based NGO, ‘We the Citizens’.
Appearing for the government, Attorney General KK Venugopal told Chief Justice JS Khehar that given the “sensitive” nature of the issue, the Centre wanted a “larger debate on it”. He also asked for the matter to be referred to a larger bench given the constitutional issues involved. The matter is due to be heard by a three-judge bench in the first week of September.
What is the Relevance of Article 370 to this Debate?
Before Independence, J&K was under British suzerainty. What this meant was, that the ruler of the princely state, Maharaja Hari Singh, was in total control of all matters of administration and governance except – defence, foreign affairs and communication, which came under the British.
At the time of Independence, Maharaja Hari Singh, albeit under pressure from tribal insurgents, chose to accede to India but agreed to sign the Instrument of Accession as long as the same arrangement was allowed to continue.
In 1949, all princely states were requested to send their representatives to the Constituent Assembly to help draft the Constitution of India. The princely states were also encouraged to set up their own constituent assemblies.
The J&K constituent assembly’s only representation was to incorporate only those provisions in the Indian Constitution that corresponded with the Instrument of Accession.
This came to be known as Article 370.
What was PM Nehru's Take on Article 370?
In 1952, the State and Union signed the Delhi Agreement which extended Indian citizenship to all residents of the state and allowed the state to decided on the rights and privileges of the state subjects or permanent residents, as they would now be called.
In a statement to the Lok Sabha on the Delhi Agreement, Prime Minister Nehru said:
Was Article 370 Meant to Be a Permanent Solution?
It must be noted, however, that Article 370 was stipulated in the Indian Constitution as a temporary provision.
In the 60 years since, Jammu and Kashmir continues to enjoy its special status, but it’s autonomous nature has eroded considerably.
Over the years, Reserve Bank of India and the Supreme Court have extended their jurisdiction to the state. A more recent and relevant example, however, is when India awoke to a brand new taxation system on the midnight of 1 July, the state of Jammu and Kashmir remained fast asleep. The state’s tryst with the new tax took place a week later after the J&K state assembly passed a resolution accepting the Goods and Services Tax, which was then formalised with a Presidential order passed by Pranab Mukherjee.
What is the Argument Against Article 370?
It Was to Be a Temporary Provision
The fact that Article 370 was prescribed in the Constitution as a temporary provision is the bone of contention in Kumari Vijaylakshmi Jha’s appeal admitted to the Supreme Court on 8 August. It asks the court to consider whether the temporary provision lapsed with the dissolution of the state’s constituent assembly in 1957.
Can Article 370 Be Revoked?
Clause 3 states that a Presidential order issued on the recommendation of the Constituent Assembly of the State can revoke Article 370. However, that would require a new constituent assembly to be convened, one that is willing to recommend the revocation of Article 370. Under then PDP-BJP government, that was less than likely. But even if it were to happen, the entire exercise could be subjected to a judicial review that could find that this clause essentially defines the relationship between the state of Jammu and Kashmir and the Union of India.
In its affidavit to the Supreme Court, the state of J&K defended Article 370 saying it had become a “permanent feature of the Indian Constitution”.
It’s the reason why the then J&K Chief Minister Mehbooba Mufti, who was in alliance with the BJP in the state, warned that if any attempt was made to tamper with the special status of J&K or Article 35A, there would be no one to shoulder the Indian flag in the Valley.
The sentiment was echoed by her predecessor and opposition leader, Omar Abdullah who said that questioning the special status of J&K will put a question mark on the accession itself.
Like Article 370, Article 35A was negotiated between the princely state of J&K and the government of India and it is the bedrock of accession. How can the Attorney General welcome a debate on Article 35A? Are they ready for a debate on accession?Omar Abdullah, Chief, National Conference
Three petitions filed in quick succession, the Attorney General asking for a wider debate, and increasingly loud rhetoric by state-level BJP leaders has given momentum to the discussion around revoking Article 370 and through it Article 35A.
But considering the sensitivity of the subject at hand, the legal proceedings could well be interpreted as a ticking time bomb.
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