Amid growing animosity between India and Pakistan following the recent Pulwama attack in Jammu and Kashmir (J&K), the Supreme Court is expected to hear petitions challenging the constitutional validity of Article 35A of the Constitution in J&K this week.
The speculations are rife that the article might be revoked by the government as it may bring an ordinance to abrogate it.
But what is Article 35A? Can it be repealed? What will be the legal ramifications, let's understand.
What is Article 35A?
Incorporated in the Constitution by a 1954 Presidential order, Article 35A confers special rights and privileges upon the citizens of Jammu and Kashmir (J&K) and prohibits people from outside the state from buying/purchasing any immovable property in the state.
The article authorises the state's legislature to define "permanent residents" of J&K and provide them with notable benefits exclusive only to them.
Meanwhile, Article 35A proscribes non-permanent residents from permanently settling in the state, buying immovable property, acquiring land, applying for government jobs, any kind of scholarships and aids and other public welfare projects.
The article also referred to as the Permanent Residents Law also bars a woman (belonging to the state) from any property rights if she marries a person from outside the state. The provision also extends to the children of such women as they do not have any succession rights over the property.
A full bench of the Jammu & Kashmir High Court in 2002 ruled that Jammu and Kashmir women who marry non-permanent residents will not lose their rights in their ancestral properties, be devoid of their right to work, education, inheritance or even adoption.
Many have lambasted Article 35A to be discriminatory towards Jammu and Kashmir women.
Can Article 35A be nullified?
In case the Article 35A is repealed, it will allow people from rest of the Indian states to acquire property in Jammu and Kashmir, settle there just like any other state in the country with equal rights.
However, legal experts are of the view that the article cannot be revoked as Article 35A was issued in exercise of the powers conferred by Article 370 (1) of the constitution, basis which the state enjoys its autonomy.
These two articles are the constitutional connection between Jammu and Kashmir and the Central government and any tinkering with them will render the Treaty of Accession null and void. The ruler of Jammu and Kashmir Maharaja Hari Singh signed this treaty in October 1947 agreeing to accede to the Dominion of India.
The High Court of Jammu and Kashmir had in October 2015 ruled that the Article 370 cannot be annulled as the clause (3) of the article bestows the power to rescind the article upon the state constituent assembly.
But, as the constituent assembly, was dissolved in 1957, it did not take any such move to revoke the article; and the article acquired a permanent status irrespective of being designated as a temporary provision of the Constitution.
The Supreme Court in 2018 had opined on the similar lines and said that since the state constituent assembly has been discontinued, the President of India would not be able to implement or execute the obligatory provisions required for its withdrawal.
Hence, if the Article 35A has to be abrogated again, it cannot realise the compulsory provisions which are indispensable under Article 370 as the article is a part of a series of presidential orders implemented under Article 370 of the Constitution.
Copyright©2023 Living Media India Limited. For reprint rights: Syndications Today