Struggle against scrapping Article 35A gains momentum

On Wednesday, Jammu and Kashmir High Court Bar Association Srinagar released a book on Article 35A which grants special status to J&K state. The book is titled “Response filed by Jammu and Kashmir High Court Bar Association, in the Supreme Court of India, in the petitions challenging Article 35A of the Constitution of India”. “The book will help the lawyers and other people interested to know the Kashmir dispute in its proper perspective, and its release at this point of time was the need of the hour,” said HCBA general secretary Muhammad Ashraf Bhat. Earlier, a general body meeting of the lawyers practicing in the High Court was held on Wednesday morning in which the HCBA members discussed difficulties being faced by the lawyers in the High Court, due to non-listing of their cases and non-taking up of cases from the main list.
Members of Kashmir High Court Bar Association on Tuesday urged its association leadership to fight for protection of Article 35A in Supreme Court. A RSS-backed think-tank namely J&K Study Center earlier this month had approached the apex court seeking scrapping of Article 35 A, which debars a non-state subject from purchasing land or property, seek a government job or vote in assembly elections in Jammu and Kashmir. Addressing a lawyers’ conference convened to pay tributes to advocate Abdul Qadir Sailani on his 20th death anniversary, former Bar Association president Nazir Ahmad Ronga said they should fight the petition in the Supreme Court. “We should file our written arguments in the case and send copies thereof to all the countries including UNO and International Court of Justice,” he said. Advocate Mohammad Amin Bhat urged to challenge those threatening the scrapping of Article 35A.
What is Article 35A? It is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land. Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.
The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir. So Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir. The parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution. Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution. So did the President act outside his jurisdiction? Is Article 35A void because the Nehru government did not place it before Parliament for discussion? A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the President’s powers under Article 370 to modify the Constitution.