What is Article 35-A of the Constitution of India

Source : http://www.legalserviceindia.com
Author : Aamirahmad202
Published on : August 26, 2017


  
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What is Article 35-A of the Constitution of IndiaIt all began in 2014 when a Delhi based NGO filed a PIL in the Supreme Court of India, challenging the Constitutional validity of Article 35-A of the Constitution of India.

In that petition the Petitioner has contended that, "the said Article was not added to the Constitution by following the procedure prescribed for amendment of the Constitution of India under the Article 368. Hence it violates the Constitutional Procedures established by law as the Legislation, including amendment to Constitution, is the sole Function of the Parliament and not that of the Executive."
Before I write about the Consequences of the Removal of Article 35-A of the Constitution of India, it is noteworthy to mention here what Article 35-A actually is.

Article 35-A reads as Under:

Saving of laws with respect to permanent residents and their rights. — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:
(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or

(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—

(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide,
shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part."

Thus the said Article restricts the Right of the Non-Residents of The State of Jammu and Kashmir to Hold, acquire any immovable property within the State. And also restricts their right to get any Government Job, Scholarship, Aid from the State Government. Thus we can say that it is a Special Status accorded to the Residents of the State of Jammu and Kashmir to enjoy these rights.

It is noteworthy to mention here that Article 35-A was added to the Constitution of India by the Then President of India, Mr. Rajendra Prasad through a Presidential Order "The Constitution (Application to the State of Jammu and Kashmir) Order, 1954, after the Delhi Agreement was entered into between the then prime minister of Jammu and Kashmir, Mr. Sheikh Mohammad Abdullah and Pt. Jawahar Lal Nehru. It is after this agreement that Pt. Jawahar Lal Nehru while giving a statement on Delhi Agreement in the Lok Sabha said,
'The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time past, in the Maharaja's time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there. And that continues. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Now they want to vary the old Maharaja’s laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. However, we agree that this should be cleared up. The old state’s subjects definition gave certain privileges regarding this acquisition of land, the services, and other minor things, I think, State scholarships and the rest.

So, we agreed and noted this down: 'The State legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State, more especially in regard to the acquisition of immovable property, appointments to services and like matters. Till then the existing State law should apply.'

We must be aware of the fact that originally, it's only the Article 1 and 370 of the Constitution of India which were applicable to the State of Jammu and Kashmir. The other Articles were made applicable only through the Presidential Orders of 1950 and 1954 under the power conferred by Article 370 upon the President of India.

Thus if the Said Article is held Unconstitutional for the want of Due procedure laid down under Article 368 of the Constitution of India, the Apex Court has to struck down Both the Presidential Orders of 1950 and 1954 in toto. And as a result of which the Union of India will loose its grip over Kashmir. Because when both the Presidential Orders of 1950 and 1954 will be struck down as Unconstitutional, the power of the Parliament of India to Legislate for the State of Jammu And Kashmir will be reduced to only three Subjects as mentioned in the Instrument of Accession, viz the Defence, Foreign Affairs and the Communication, which are mentioned entry wise in the First Schedule to the Order of 1950. And all the laws whose application was extended to the State of Jammu and Kashmir through the Presidential Order of 1950 or 1954, except those mentioned in the Instrument of Accession, will automatically be reduced to mere papers for the State of Jammu and Kashmir and will have no Effect of Operation within the state.

It's noteworthy to mention that it's not only the General laws which will loose their Sanction with respect to the State of Jammu and Kashmir but the Grund Norm, the Constitution of India itself will be no more applicable to the State of Jammu and Kashmir except the Article 1 and 370 of the Constitution of India.

Because the Presidential Orders of 1950 and 1954 read as,

Order of 1950:

3_ "In Addition to the provisions of Article 1 and Article 370, of the Constitution, the only other Provisions of the Constitution which shall apply in relation to the State of J&K shall be those specified in the Second Schedule to this Order, and shall so apply subject to the exceptions and modifications specified in the said schedule.

Order of 1954:

"[2. The provisions of the Constitution as in force on the 20th day of June, 1964 and as amended by the Constitution (Nineteenth Amendment) Act, 1966, the Constitution (Twenty-first Amendment) Act, 1967, ..................................., sections 2, 3 and 6 of the Constitution (Fifty-second Amendment) Act, 1985 and the Constitution (Sixty-first Amendment) Act, 1988 which, in addition to article 1 and article 370, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows:."

Thus the above two paras of the Presidential Orders of 1950 and 1954 respectively make it quite evident that the Constitution of India (except Article 1 and 370) was made applicable to the State of Jammu and Kashmir "In Addition to the Article 1 and 370, with such modifications as are mentioned in the Presidential Order of 1954."

Thus if the Hon'ble Supreme Court of India struck down the Article 35-A for the want of procedure laid down under Article 368 of the Constitution of India, the Apex Court has then to struck down Both the Presidential Orders of 1950 and 1954 as Unconstitutional for the Want of Procedure laid down under the Article 368 of the Constitution of India. Which will result in the Shift of the Constitutional Status of the State of Jammu and Kashmir to the Pre-1950 era. In which the State enjoyed a great autonomy. And the Parliament of India will be left with only three Subjects to Legislate upon with respect to the State of Jammu and Kashmir. Which were mentioned in the Instrument of Accession.

Regarding the absolute right of The residents of the State of Jammu and Kashmir to Hold and Acquire Immovable Property within the State of Jammu and Kashmir, even if the said Article is stuck down as Unconstitutional, the said question will be still dealt by the Section 140 of the Jammu and Kashmir Transfer of Property Act svt. 1977 and the Constitution of Jammu and Kashmir, which again prohibit the right of Non-Residents of The State of Jammu and Kashmir to hold, acquire any immovable property within the state of Jammu and Kashmir.