Sunday, 9 August 2015

Validity of Article 35A challenged

Jammu and Kashmir Study Centre has challenged the constitutional validity of Article 35A which was introduced in 1954 under Article 370.

The argument put forward by the study centre is that thanks to this Article many non-permanent residents of J&K can’t vote in the assembly election and panchayat election in the state. Also thanks to this Article non-residents of J&K are not allowed to buy land or property in J&K or also get a government job.

Should this legal challenge by the Jammu and Kashmir Study Centre is successful, it will have numerous far reaching implications.
The Jammu and Kashmir Study Centre on the 11th of July 2015 had organised an interaction with some residents of J&K who have not been able to get government jobs despite being educated and also not been able to own land in the state as they do not have permanent residence certificate.

At the event Ashutosh Bhatnagar, secretary of JKSC said that,

    “Article 35A has resulted in gross human rights violations for last 60 years in the state of Jammu and Kashmir. It would be ideal if the Supreme Court takes suo motu cognizance of the issue. However, if that does not happen, we will approach the Supreme Court. Our team of legal experts is working to prepare a petition in the matter.”

Senior advocate of Supreme Court and former Cabinet minister Jagdeep Dhankhar spoke to the media at the event regarding the legal aspects of the Article 35A and added that,

    “This amendment was executed by way of a Presidential Order known as ‘Constitution (Application to Jammu and Kashmir) Order 1950’. Besides carrying out many modifications and changes, this presidential order ‘added’ a new “Article 35A” after Article 35 to the Constitution of India. Addition or deletion of an Article amounts to an amendment to the Constitution. And the Constitution can be amended only by the Parliament as per procedure clearly laid out in Article 368. But Article 35A was never presented before the Parliament of India !”

The issue at the bottom of the present debate is that, Article 35 of the Constitution of India was amended to 35A (granting authority to J&K Constituent Assembly to amend citizenship rights) and was incorporated into the Indian Constitution through a Presidential Order on May 14, 1954, bypassing the Parliament.

The current debate about Article 35A is that it is discriminatory when it comes to giving rights to the state’s migrant citizens. As per the Article the migrants are not entitled to right to higher and technical education in the state and also they have no right to avail bank loans. To take a stand against the discriminatory Article many women, dalits, Gurkhas and people who had migrated from Western Pakistan during the partition filed complaints with various commissions in the state reporting violation of basic rights. Jammu and Kashmir Study Centre got them all together so as to add more weight to the complaints lodged by them all.

Here it is worth noting that the National Conference (NC) has already declared that it will oppose any move to change or repeal Article 35A.

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