Article 35 A: SC adjourns hearing petitions challenging validity, to hear matter on August 27

On Monday, SC adjourned hearing petitions challenging validity of Article 35 A which empowers J&K state’s legislature to define ‘permanent residents’ and provide special rights. The SC will hear the matter on August 27.

The Union government decided not to file a counter affidavit in order to leave the Supreme Court free to decide on what is essentially an interpretation of the law and the Constitution.

Article 35-A was incorporated into the Constitution by a presidential order in 1954, stating, all those living in Jammu and Kashmir at that time and also those who lived in the state for 10 years anytime since, would be considered as its permanent residents.

These residents have been issued a certificate, which entitle them to special benefits in employment etc, and the biggest advantage being- only the permanent residents have the right to own and buy property in the state.

A non-governmental organisation, We the Citizens, filed a petitioned in the apex Court in 2014 to abolish the law on the grounds that it was "unconstitutional".

There are apprehensions, amongst sections of Kashmiris, that if the law is repealed or diluted, outsiders would be settled in Jammu and Kashmir.

The matter of 35-A has united Kashmiri separatists and mainstream politicians.

The government and the top court, on the other hand, are treading rather cautiously in dealing with the sensitive issue.

What is Article 35 A?

“Saving of laws with respect to permanent residents and their rights. — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:

(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or

(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—

(i) employment under the State Government;

(ii) acquisition of immovable property in the State;

(iii) settlement in the State; or

(iv) right to scholarships and such other forms of aid as the State Government may provide,

shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part."

What is the controversy?

Protests have been held across the length and breadth of Kashmir over the past few days with mainstream parties like the National Conference and PDP also holding rallies in support of continuing Article 35-A.

Political parties including the National Conference and the CPI-M, have moved the Supreme Court in support of the Article 35A that empowers the state assembly to define "permanent residents" for bestowing special rights and privileges to them.

Various organisations included Bar Association, transporters and traders' bodies have extended support to the shutdown call of the JRL, comprising Syed Ali Shah Geelani, Mirwaiz Umar Farooq and Mohammad Yasin Malik.

In a separate meeting, some lawyers passed a resolution for strengthening and retention of the Article 35A. The meeting was held under the chairmanship of senior lawyer AV Gupta.

He said Maharaja Hari Singh had executed the Instrument of Accession with certain conditions which later came out in the shape of Article 35-A read with Article 370.

The people in Kashmir don't want the Article 35A to be scrapped because of the immunity it provides. Without the Article 35A, people from outside the state can settle in the Valley, buy up all the available land and dilute the identity of the people of the soil. 

Closely aligned with Article 35A is its predecessor Article 370, which came into existence in 1949 and gives special powers to the President to make certain changes to the Constitution without consulting Parliament. Article 370 limits the writ of the Central government. Both these Articles - 370 and 35A – entered the Constitution in 1954, when Prime Minister Jawaharlal Nehru was negotiating the terms with Sheikh Mohammad Abdullah who was the prime minister of J&K. 

Life in Kashmir remained severely affected today for the second consecutive day due to a complete shutdown called by separatists against the legal challenge in the Supreme Court on the validity of Article 35A.

The two-day strike called by the Joint Resistance Leadership (JRL) -- comprising Syed Ali Shah Geelani, Mirwaiz Umar Farooq and Mohammad Yasin Malik -- comes as the Supreme Court is scheduled to hear a PIL challenging the validity of Article 35A later in the day.

Article 35A, incorporated in the Constitution by a 1954 Presidential Order, confers special status to the permanent residents of Jammu and Kashmir, and bars people from outside the state from acquiring any immovable property in the state.

Educational institutions, shops and business establishments remained closed across the Valley, while all kinds of transport remained off the roads due to the strike.

The state government has filed an application before the registrar of the Supreme Court, informing that it was going to seek adjournment of the hearing in view of the "ongoing preparations" for the upcoming panchayat and urban local body and municipal elections in the state.

Officials said the security forces had been deployed at vulnerable places in the city and elsewhere in Kashmir for maintaining law and order. The situation across the Valley is peaceful with no untoward incident reported from anywhere so far today, the officials said.

Stone-pelting incidents were reported from some places yesterday, with six people getting injured in Kulgam district in a clash between protesters and security forces. Various organisations. including the state bar association, transporters and traders' bodies have extended support to the shutdown call.

Protests have been held across the length and breadth of Kashmir over the past few days, with mainstream parties like National Conference and Peoples Democratic Party (PDP) also holding rallies in support of continuing Article 35A.