(This podcast was first published in 25 February 2019. It is being reposted from The Quint’s archives in the context of the central government revoking Article 35 and Article 370 in parliament on 5 August 2019)
On 5 August, Parliament revoked Article 370 of the Constitution which grants special rights to Jammu and Kashmir and its residents.
Tensions have been high in the valley amid talk of the government changing its stand on Article 35A of the Constitution.
This is The Big Story podcast, where we break down and explain what’s making news, with input from experts. On this episode, we’re diving into Article 35A of the Constitution.
Article 35A has been a major flashpoint for residents of Jammu and Kashmir and the Centre ever since it became an addition to the Indian Constitution in 1954 via a presidential order. Listen to the podcast for the full story:
What Does Article 35A Do?
Article 35A of the Indian Constitution empowers the Jammu and Kashmir state legislature to define who are the state’s “permanent residents”. It also lets the state legislature decide what special rights and privileges permanent residents will have.
The provision added by the Presidential order prohibits non-permanent residents from settling permanently in the state, buying or acquiring immovable property – meaning houses and land. It also prohibits non-permanent residents from getting government jobs, being eligible for scholarships or basically being eligible for any form of aid from the government.
Some people have opposed 35A as unconstitutional. Remember how I said that article 35A was added to the constitution via Presidential order? This means it’s an expansion of an existing provision, so it doesn’t need to be approved by the Parliament.
So, based on this logic, an NGO filed a petition challenging 35A. They argue that since the provision wasn’t presented before Parliament, 35A is unconstitutional.
Article 35A and Article 370
Now on the other side of this argument is Article 370 of the Constitution.
Article 370 gives the state of Jammu and Kashmir autonomous status. Before it became a part of India, J&K was a princely state that operated under British suzerainty.
This meant that the ruler controlled the state except for aspects of defence, foreign affairs and communication, which the British would control.
When J&K acceded to India, it only did so under the condition that this arrangement will continue. This was why Article 370 came into effect in 1949.
Arguments For & Against Article 35A and Article 370
Article 370, which gives Jammu and Kashmir autonomous status, and article 35A, read together, are meant to protect Jammu and Kashmir and its people from external forces which could otherwise damage the state’s people and resources.
So Article 370 which gives J&K special status, and Article 35A which gives the state the right to decide the privileges of its citizens, are basically two sides of the same coin.
They are tied together and one flows from the other.
In the wake of the Pulwama attack, some people, like Bollywood actress Kangana Ranaut called for scrapping Article 370. However, others, like five-time Bihar Chief Minister Nitish Kumar, have strongly opposed toying with 370.
In the seventy years since 370 was put into effect, J&K’s autonomy has reduced considerably, but it still has special status.
For example: The RBI and the Supreme Court’s jurisdiction both extend to J&K now. A week after India welcomed GST, J&K’s assembly passed a resolution accepting it as well. The main argument against 370 is that it was never meant to be a permanent provision, just a temporary solution.
Some others have also opposed 35A calling it discriminatory against women from Jammu and Kashmir. Why? Because if a woman from J&K marries a non-permanent resident, she would lose her special privileges…but this provision was overturned by a landmark judgment from the J&K high court in 2002.
For example: petition against 35A was filed in the Supreme Court in 2018. This one by two women who said that 35A had led to their children becoming disenfranchised and losing their rights.
So from 26 to 28 Feb, the Supreme Court will hear arguments for and against 35A. With everything that’s been going on in the valley after the Pulwama attack, all eyes…and the spotlight are now on the Supreme Court.