Should Article 35A be scrapped? (Kashmir-specific provisions)

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Should Article 35A be scrapped? (Kashmir-specific provisions)

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• PERSPECTIVE ONE – YES, SCRAP IT. 

1. An integral part : J&K was an integral part of India as per the Instrument of Accession (26-10-1947). 
2. Article 35A not in regular text of Constitution: Its validity is under question. It is part of an Appendix. 
3. Presidential Order: The Constitution (Application to J & K) Order, 1954 inserted it. It did not arrive via Article 368 (amendment procedure of constitution). But it came under the powers given by Article 370(1) (d). Was that correct? 
4. What does it do? Any law made by the J&K Assembly on permanent residence or property rights etc. cannot be held void if they clash with rights given to other citizens of India. No violation of F/Rights will deemed to have happened.
5. Second class citizens: Non permanent citizens now become ‘second-class’. They can neither get govt. jobs, nor contest elections. 
6. Women suffer: Permanent resident ladies who marry outside the state, see their kids lose the PR status. Basic right of inheritance is lost. 
7. Have confidence: The residents must have confidence that opening up the state to outsiders won’t kill their rights, but boost investments. 
8. Insaniyat, Jamhooriyat, Kashmiriyat: Atal ji believed that humanity, democracy and Kashmiri values alone could resolve the issues of Kashmir.

• PERSPECTIVE TWO – NO, RETAIN IT. 

1. Two challenges to 35A: First, it was inserted unconstitutionally. Second, that laws passed under Article 35A are ultra vires of the Fundamental Rights of Part III, like Right to Equality (Article 14) and Protection of Life (Article 21).
2. Upon Partition: Maharaja Hari Singh dithered initially, and signed the “Standstill Agreement” with both Pak and India (12-08-1947). But Pak’s invastion led to the IoA signing on 26-10-1947. The schedule attacked to that IoA specified that Dominion of India could make laws for defence, external affairs, communications etc. 
3. Plebiscite pending, India consolidates through Article 370: To strengthen relations, India enacted Article 370 on 17-10-1949. Article 370(1) (d) gave the powers to the President to allow modifications. 
4. Delhi Agreement 1952: It followed Article 370. Clauses 2 & 6 of this Agreement explained the position. CONCEPT 
5. The 1954 Order: It came pursuant to this agreement (empowering state legislature to define PR) and hence is not found in the main body of our Constitution. If this is struck down, many other aspects of the Orders too will be.

• PERSPECTIVE THREE – COMPLEX. 

1. Conditional accession to India: The Article 35A safeguards laws made by J&K on specified matters, which will not be void on the grounds of clashing with fundamental rights in our constitution. 
2. Article 370 a recognition: That the state enjoys a special stature is recognised by it. It said that Parliament can make laws for J&K on matters in Union List and Concurrent List only as per matters listed in the IoA. 
3. Land, land rights, settlement: Land is a state subject. So laws made by J&K state, as per Article 35A, cannot be struck down. 
4. HP and Uttarakhand too have similar laws! No outsider can buy land there, so these laws violate two fundamental rights – 
1. freedom to reside and settle in any part of India, and 
2. freedom to practice any profession or trade. These laws are void! 
5. Kashmir never acceded fully to India: It is a quasi-sovereign state, unlike any other.  Article 35A simply follows the  IoA and the guarantee that State’s autonomy won’t be disturbed. 
6. What about women rights? Sadly, gender equality is being hurt, but it is for the State to take a call, not the Union. CONCEPT

• Summary : Three perspectives on the contentious issue of Article 35A in the constitution, indicate that the limited accession of J&K into India makes it a special case indeed.

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