February 23
The Article 35A of the Indian constitution empowers Jammu Kashmir legislature to define state’s “permanent residents” and their special rights and privileges, It was added to the constitution through a presidential order of 1954.
The High Court Bar association of Kashmir has constituted a panel of senior lawyers who would represent the state in the apex court.
The Supreme Court of Indian in August last adjourned the hearing on a bunch of petitions challenging the constitutional validity of Article 35A till January. The Jammu Kashmir government had sought adjournment of the hearing Article 35A in the view of local body elections in the state.
WHY IS IT IMPORTANT TO JAMMU KASHMIR?
Through 1927 and 1932 notifications,the Dogra ruler, Hari Singh imposed a law that defined state subjects and their rights. The law also regulated migrants to the state.
In 1949 Sheikh Abdullah negotiated Jammu Kashmir’s political relationship with New Delhi, which led to the inclusion of Article 370 in the Constitution.
Article 370 guarantees special status to J&K,restricting Union’s legislative powers over three areas: defence, foreign affairs and communications.
However, under the 1952 Delhi Agreement between Abdullah and Nehru, several provisions of the Constitution were extended to Jammu Kashmir via presidential order in 1954. Article 35A was inserted then.
Jammu kashmir Constitution was framed in 1956. It retained Maharaja’s definition of permanent residents: All persons born or settled within the state before 1911 or after having lawfully acquired immovable property resident in the state for not less than ten years prior to that date. All emigrants from Jammu and Kashmir, including those who migrated to Pakistan, are considered state subjects. The descendants of emigrants are considered state subjects for two generations.
Permanent residents law prohibits non-permanent residents from permanent settlement in the state, acquiring immovable property, govt jobs, scholarships and aid.
WHY THE ISSUE?
Though there has been debate over Article 370 as the RSS and BJP have called for repealing it, Article 35A never came under serious scrutiny. It has been modified through various Presidential Orders more than 40 times.
Of the four petitioners challenging the Article 35A is an RSS-linked NGO, We the Citizen. The NGO has challenged Article 35A on the grounds that it was not brought through constitutional amendment as required under Article 368. We the Citizen also contended that Article 35A was never presented before Parliament for approval.
In another case in SC last month, two Kashmiri women argued that the state’s laws, flowing from 35A, had disenfranchised their children.