Challenging Article 35A
Article 35A was introduced by a presidential order in 1954 to safeguard the rights and guarantee the unique identity of the people of Jammu and Kashmir. This provision gives the Jammu and Kashmir legislature the right to decide who are permanent residents of the state and confer on them special rights in acquisition of property, in public sector jobs and social welfare. The Article provides that no legislative measure coming under it can be challenged for violation of the constitution or any other law of the land.
Article 35A was incorporated in the constitution following the Delhi agreement of 1952 between Prime Minister Nehru and Sheikh Abdullah. The Presidential order was issued under Article 370 of the constitution which accords a special status to Jammu and Kashmir.
The two petitions filed before the Supreme Court and which are being heard by a three-member bench, is meant to challenge and nullify the special status given to Jammu and Kashmir. By getting Article 35A declared ultra vires of the constitution, they hope to overturn the protection accorded to the special identity of its people.
It has been the long cherished aim of the certain forces to get people from outside J&K to settle in the state and change its demographic character. That way they hope to “assimilate” the state and its people into a narrow, straitjacketed view of the nation.
That this would lead to the decisive break of Kashmir from India and sever the bond solemnly affirmed in 1948, is of no consequence to those who demand nullification of article 35A.
The Government of India, through the attorney general, has refused to defend Article 35A in Court. The attorney general has called for a debate in the Court on the subject.
By adopting such a stance, the Modi government is playing with fire. Already, the situation in the valley is such that practically the entire people are totally alienated from India. This is the result of the central government’s refusal to deal with the problem politically and to rely on harsh repression and coercion.
The Supreme Court, had twice earlier dismissed such challenges to Article 35A.