J&K CM Mehbooba Mufti has warned that any attempt to remove Article 35A will mean there will be no one to shoulder the Indian flag in the Valley. 
J&K CM Mehbooba Mufti has warned that any attempt to remove Article 35A will mean there will be no one to shoulder the Indian flag in the Valley. (Photo: Harsh Sahani/The Quint)
  • 1. Argument No. 1 Against Article 35A
  • 2. Argument No. 2 Against Article 35A
  • 3. What is the Relevance of Article 370 to this Debate?
  • 4. What was PM Nehru's Take on Article 370?
  • 5. Was Article 370 Meant to Be a Permanent Solution?
  • 6. What is the Argument Against Article 370?
  • 7. Can Article 370 Be Revoked?
As BJP Promises to Annul Article 35A, Here’s What It is All About

(This explainer was first published on 14 August 2017 and is being reposted in light of the BJP releasing its manifesto for the 2019 Lok Sabha elections on Monday, 8 April. In the manifesto, the party said it is committed to the abrogation of Article 370, as well as annulment of Article 35A.)

The Supreme Court of India is expected to begin hearings on the petitions filed against Article 35A of the Constitution this week. The hearings will take place from 26-28 February, reports ANI.

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 are coming up for hearings for the first time since August 2018, when the matter was postponed in light of the upcoming local elections.

Here’s what the cases are about, and why this issue is being used as a political tool in Jammu & Kashmir.

  • 1. 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.

    J&K CM Mehbooba Mufti has warned that any attempt to remove Article 35A will mean there will be no one to shoulder the Indian flag in the Valley. 

    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.

    J&K CM Mehbooba Mufti has warned that any attempt to remove Article 35A will mean there will be no one to shoulder the Indian flag in the Valley. 
    Charu Walikhanna is a Supreme Court lawyer and has authored a law book titled ‘Sex & Harassment’.
    (Photo Courtesy: Facebook/Charu Walikhanna)

    It was incorporated under Article 370 through a constitutional order signed by Rajendra Prasad in 1954.

    J&K CM Mehbooba Mufti has warned that any attempt to remove Article 35A will mean there will be no one to shoulder the Indian flag in the Valley. 
    Sixty-three years after Dr Rajendra Prasad signed the constitutional order bringing Article 35A into existence, its validity is being questioned. 
    (Photo Courtesy: Parliament of India)
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