Explained: What is Article 35A and what is the controversy surrounding it?


The controversy surrounding Article 35A of the Constitution which grants special powers to the Jammu and Kashmir Legislative Assembly has been at the center of election campaign of the political parties in the state. The controversy started when in 2015, an RSS-based think-thank sought to scrap the Article and BJP came out in its support. While BJP has been arguing that the Article is against the territorial integrity of the nation, the Jammu and Kashmir parties say that it is a bridge between the border state and the rest of India. They have alleged that any decision to change or scrap the Article 35A will only increase the gap between JK and the rest of India and no one in the state will hold the Tricolour. What is Article 35A? Article 35A was added to the Constitution of India through a presidential order on May 14 in 1954. Then President Rajendra Prasad had signed the Constitution (Application to Jammu and Kashmir) Order, 1954, exercising the powers conferred upon him by the clause (1) of the Article 370 of the Constitution with the advice of then Prime Minister Jawaharlal Nehru. Article 35A was enacted as a subsequent to the 1952 Delhi agreement between Nehru and then Jammu and Kashmir Prime Minister Sheikh Abdullah. Under this Article, the Jammu and Kashmir Legislative Assembly is empowered to define permanent resident of the state and provide special rights and privileges to them. The Jammu and Kashmir Legislative Assembly has the power to alter the definition of permanent resident through a law passed with at least two-thirds majority. The Jammu and Kashmir Constitution was adopted on November 17, 1956. It defines a permanent resident as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years or has legally acquired immovable property. The Article also prevents a non-permanent resident from buying or owning properties in the Kashmir region of the state. However, it allows Hindus from Jammu and Ladakh regions to settle down in the Valley. It also states that a person who is not a permanent resident of JK can get a government job. The Article states that only a permanent resident can join any professional college run by government of Jammu and Kashmir or get any form of government aid out of government funds. However, no one from outside the state is allowed to join such colleges or get funds from government treasury. What is the controversy around Article 35A The Article was added to the Constitution by the executive head. No discussion and debate took place in the Parliament before it was added to the Constitution. This is also one of the reasons why many questions have been raised about the manner of its enactment. We the Citizen, an NGO, challenged Article 35A and Article 370. It argued that the Articles were not introduced through a constitutional amendment which is mandatory under Article 368 of the Constitution. The NGO submitted before the Supreme Court that Article 35A was never presented before the Parliament for its approval. It also said that Article 35 A negates the According to We the Citizen, preventing a citizens from rest of the country to buy property or obtain government jobs is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution. Who stands where on the matter? With elections around the corner, the issue is being raked up by political parties both within the state as well as outside it. The Bharatiya Janata Party has maintained that Article 35A and 370 of the Constitution should be scrapped. In March, Union minister and senior BJP leader Arun Jaitley in a blog said that Article 35A is He said it also blocks the economic development of Jammu and Kashmir. At present, pleas challenging the Article 35A and 370 are pending before the Supreme Court. In the Supreme Court, the Jammu and Kashmir administration said that an elected government will be the right authority take a call on the matter. Those opposing the BJPs stand on the issue are regional Jammu and Kashmir parties. Both the two prominent parties — PDP of Mehbooba Mufti and National Conference of Omar Abdullah have been warning the BJP any tampering with Article 35A. Both the former Chief Ministers have been raising the issue in their elections campaign. PDP president Mehbooba Mufti most recently said that the relation of the border state with India will end if the terms and conditions of the Article 35A and 370 are changed. 2020 will also be a deadline from Jammu and Kashmir to the nation. If you remove those terms and conditions on which Jammu and Kashmir acceded to India, our relation with the country will also end, Mehbooba said after filing her nomination papers from the Anantnag Lok Sabha constituency on April 3, according to a PTI report. Abdullah said that any decision to do away with Article 35A and 370 will alter Jammu and Kashmirs relationship with India as it is the special status which forms the very basis of the relation.

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