Why in News?

• Article 35A, which empowered the J&K Legislature to define permanent residents of the State and provide them special privileges, denied fundamental rights to others.
• This remark was made by the CJI while heading a Constitution Bench, which is currently hearing pleas against the Centre’s move to abrogate Article 370.

What’s in Today’s Article?

• What is Article 35A?
• Controversies Around Article 35A
• Current Status of Articles 370 and 35A
• CJI (D.Y. Chandrachud) on Article 35A

What is Article 35A?

• Article 35A gives the J&K Legislature a carte blanche/ complete freedom to decide who all are ‘permanent residents’ of the State.
  • ‘Permanent residents’ included people who were hereditary State subjects as in 1927, when J&K was a princely state prior to its accession to the Indian Dominion in 1947.
• Article 35A confer on them special rights and privileges in
  • Public sector jobs,
  • Acquisition of property in the State,
  • Scholarships and
  • Other public aid and welfare.
• It was incorporated into the Constitution of India in 1954 by a Presidential Order, following the 1952 Delhi Agreement [between the then central govt, and the then PM of J&K Sheikh Abdullah].
  • The Delhi Agreement extended Indian citizenship to the ‘State subjects’ of J&K.
• The Presidential Order was issued under Article 370 (1) (d) of the Constitution, allowing the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of J&K.
• Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of J&K.

Controversies Around Article 35A:

• Article 35A is unique in the sense that -
  • It does not appear in the main body of the Constitution.
  • It by passed the parliamentary route of lawmaking. Article 368 of the Constitution empowers only Parliament to amend the Constitution.
• Article 370 was only a ‘temporary provision’ to help bring normality in J&K and strengthen democracy in that State.
  • The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.
• Article 35A was against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”.
  • Restricting citizens from other States from getting employment or buying property within J&K is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.
• It was against gender equality. For example, Article 35A restricts the basic right to property if a native woman marries a man not holding a permanent resident certificate.
  • Her children are denied a permanent resident certificate, thereby considering them illegitimate.
• Violates judicial review principle. For example, Article 35A mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

Current Status of Articles 370 and 35A:

• The Constitution (Application to Jammu and Kashmir) Order 2019 withdrew the special status of J&K and extended all provisions of the Indian Constitution (including Part III - Fundamental Rights) to J&K.
• As Article 35A stems from Article 370, the discriminatory provisions under Article 35A are now unconstitutional.

CJI (D.Y. Chandrachud) on Article 35A:

• Article 35A gave special rights and privileges to permanent residents and virtually took away the rights for non-residents.
• This artificially created class of ‘permanent residents’ alienated people who did not fall within the category.
• Article 35A had even granted immunity from judicial review to these special privileges, as any law which provides for these special privileges would not violate fundamental rights like
  • Articles 14 (right to equality),
  • Article 19(1)(e) (right to settle anywhere in the country)
  • Article 21 (right to life and personal liberty) and
  • Article 22 (protection against preventive detention).
• However, the CJI asked the government whether the Centre had adhered to the principle of federalism while abrogating Article 370 and abolishing J&K as a full-fledged State.
  • Article 3 made it mandatory for the President to consult the State Legislature before altering the status of a State.
  • The abrogation was facilitated by first dissolving the J&K State Legislature and then proclaiming President’s Rule under Article 356.
  • The Parliament assumed the role of the J&K State Legislature and gave its views to itself about the alteration of J&K from a State to 2 UTs.