Article 35A

  • Article 35A is an article of the Indian Constitution which accords special rights and privileges to the citizens of Jammu and Kashmir (J&K).
  • It was added to the Constitution by a Presidential Order in 1954.
  • It empowers the state’s legislature to frame any law without attracting a challenge on grounds of violating the Right to Equality of people from other states or any other right under the Indian Constitution.
  • It forms the basis for Jammu and Kashmir legislature to define the list of ‘permanent residents‘ of the state, who are eligible to vote, work for the state government, own land, secure public employment and college admissions.

Why Article 35A is being challenged:

Article 35A is being challenged on two valid grounds:

  1. According to Article 368 of the Indian Constitution, amending power of the Constitution lies exclusively with the Parliament.Thus, President has no power to amend the Constitution by incorporating a new article. But as Article 35A has been inserted by a Presidential Order so its inception itself is unconstitutional.
  2. Secondly, Article 35A is being challenged for its Gender Discrimination and violation of Article 14 thus infringing the Fundamental rights of citizens.

Article 14: “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

Article 35A of the Indian Constitution and Section 6 of the Jammu and Kashmir Constitution both deals with the “Permanent Residents” of the state. Both the article prevents any outsider from buying or acquiring any property in the state. Keeping in view the special status to the state till now everything is good. But controversy arises when the same starts discriminating between the men and the women of the state.

Once a woman of the state marries a person from outside the state she immediately loses her right over property in J&K. Not only this, She is also barred from voting in the state/Local election, work for the state government, secure public employment and take college admissions.  This provision also applies to her son.

Thus, Article 35A of the Indian Constitution and Section 6 of the Jammu and Kashmir Constitution both are being challenged for being Gender Discriminatory and violative of fundamental rights.

 

What is Section 6 of the Jammu and Kashmir Constitution?

Section 6 of the Jammu and Kashmir Constitution restricts the basic right of women to marry a man of their choice by not giving the heirs any right to property if the woman marries a man not holding the Permanent Resident Certificate. Her children are denied a permanent resident certificate thereby considering them illegitimate — not given any right to such a woman’s property even if she is a permanent resident of Jammu and Kashmir.

 

Current Status:

The question whether Article 35A, which accords special rights and privileges to the citizens of J&K is ultra vires of the Constitution or not, is currently pending before a five-judge Constitutional Bench. The bench is left with very few options and has to tread a very narrow path negotiating between peace and stability of J&K on the one hand and fundamental rights of the citizens on the other. Let’s wait and keep a close eye on the issue.

You may also like to read: Fundamental rights

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