The Supreme Court on Monday declined to entertain a fresh petition challenging Article 370, which gives special autonomous status to Jammu and Kashmir.
One of the main writ petitions pending is by NGO ‘We the Citizens’, which challenges the validity of both Article 35A and Article 370.
It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of Jammu and Kashmir was never accorded any special status in the Constitution. Article 370 was only a ‘temporary provision’ to help bring normalcy. The Constitution makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.
The petition said Article 35A is against the “very spirit of oneness of India”. Restricting citizens from other States from getting employment or buying property in J&K is a violation of their fundamental rights, it said.
What is Article 35A?
The heading of Article 35A reads: “saving of laws with respect to permanent residents and their rights”.
The laws granting special rights to permanent residents would not be deemed a violation of the fundamental rights of other citizens.
Arguments against Article 35A
The ‘classification’ created by Article 35A has to be tested on the principle of equality as it treats non-permanent residents of J&K as ‘second-class’ citizens.
Such persons are not eligible for employment under the State government and are also debarred from contesting elections.
Meritorious students are denied scholarships and they cannot even seek redress in any court of law.
Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.
It was inserted unconstitutionally, bypassing Article 368 which empowers only Parliament to amend the Constitution.
The laws enacted in pursuance of Article 35A are ultra vires of the fundamental rights conferred by Part III of the Constitution, especially, and not limited to, Articles 14 (right to equality) and 21 (protection of life).
Arguments in favour of Legality of Article 35A
Article 370 (1) (d) empowers the President of India to extend with requisite exceptions and modifications the other provisions of the Indian Constitution to J&K as may be necessary.
The Delhi Agreement of 1952 followed Article 370. According to the Clause 2 of the agreement, the State Legislature of J&K was given power to make laws for conferring special rights and privileges on the ‘state subjects’.
Article 35A follows the Instrument of Accession and the guarantee given to the State of J&K that the State’s autonomy will not be disturbed.
Himachal Pradesh and Uttarakhand and such other states also have laws which say that no outsider can buy land.
Article 370 of the Indian constitution is an article that grants special autonomous status to the state of Jammu and Kashmir. The article is drafted in Part XXI of the Constitution, which relates to Temporary, Transitional and Special Provisions.
The state’s constituent assembly was empowered to recommend the articles of the Indian constitution to be applied to the state or to abrogate Article 370 altogether. After the state constituent assembly has dissolved itself without recommending abrogation, Article 370 is deemed to have become a permanent feature of the Indian constitution.
In the case of Jammu and Kashmir, the representatives to the Constituent Assembly requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State.
The Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State’s constituent assembly.