ARGUMENTS IN FAVOUR
· Article 35A was born through a Presidential Order, the Constitution (Application to Jammu and Kashmir) Order of 1954. Therefore, it was added to the Constitution without undergoing the procedure for constitutional amendments as laid down in Article 368.
· The heading of Article 35A reads: “saving of laws with respect to permanent residents and their rights”. Thus treating non-permanent residents of Jammu and Kashmir as second-class citizens.
· Laws granting special rights to permanent residents would not be deemed a violation of the fundamental rights of other citizens.
· Meritorious students are denied scholarships and they cannot even seek redress in any court of law.
· The major sufferers are women who marry outside J&K. Though they retain their Permanent Resident Certificate, their children cannot be permanent residents.
· This restricts their basic right of inheritance.
· Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.
ARGUMENTS AGAINST
· With the issue of plebiscite under UN auspices still hanging, India moved to consolidate its relationship with the State by enacting Article 370 on October 17, 1949.
· This Article 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.
· Clause 2 of the agreement stated, “It was agreed between the two Governments that in accordance with Article 5 of the Indian Constitution, persons who have their domicile in Jammu and Kashmir shall be regarded as citizens of India, but the State Legislature was given power to make laws for conferring special rights and privileges on the ‘state subjects’ in view of the ‘State Subject Notifications of 1927 and 1932: the State Legislature was also empowered to make laws for the ‘State Subjects’ who had gone to Pakistan on account of the communal disturbances of 1947, in the event of their return to Kashmir.”
· Clause 6 stated: “With regard to the fundamental rights, some basic principles agreed between the parties were enunciated; it was accepted that the people of the State were to have fundamental rights. But in the view of the peculiar position in which the State was placed, the whole chapter relating to ‘Fundamental Rights’ of the Indian Constitution could not be made applicable to the State.” Please note that it said special rights for State subjects and not fundamental rights.
· It was pursuant to this agreement that the Constitution (Application to Jammu and Kashmir) Order of 1954 was promulgated by the President of India.
THE MIDDLE WAY
· The Instrument of Accession gave only limited rights to the Centre to interfere with the autonomy of J&K. That is why Article 370 was introduced, to recognise the special status of J&K.
· It said that the power of Parliament to make laws in J&K shall be limited to those matters in the Union List and the Concurrent List which, in consultation with the State government.
· Article 35A is only a recognition of the conditional accession of J&K into India and the restrictions placed on both Parliament and the Constitution that the normal powers of Parliament to make laws will not apply to J&K.
· Himachal Pradesh and Uttarakhand have laws which say that no outsider can buy land.
· Strictly speaking, these laws are unconstitutional and violate two fundamental rights — the freedom to reside and settle in any part of the territory of India and the freedom to practise any profession, trade and business.
· Those laws are void. But because the accession of J&K was conditional to their being given their rights, their sovereignty with regard to matters concerning land and settlement are preserved.
· Kashmir never acceded fully to India. Therefore, it is a quasi-sovereign State.
· It is for the J&K to decide, according to its laws, on the issue of discrimination against women with regard to property rights. Such a law is discriminatory according to the Indian Constitution, and is repugnant to the issue of gender equality.
Source : The Hindu