The Centre’s decision to dispatch additional forces to Kashmir has given fresh cause to speculate that Article 35A of the Constitution, which confers special rights to the permanent residents of Jammu and Kashmir, could be revoked.
The law that defines the permanent citizens of the state extends Indian citizenship to them and allows the state legislature to extend special privileges to them is currently under challenge before the Supreme Court. However, the challenge does not preclude the Centre from bringing in a new law on the issue.
Seven separate petitions have challenged the constitutional validity of Article 35A before the Supreme Court. The first one was filed in 2014 by We the People, an NGO. It argues that the Constitution (Application to Jammu and Kashmir) Order, 1954 which introduced Article 35A lacked legal force. Other petitions challenge the law on the ground that it violates the rights of refugees from West Pakistan and discriminates against women of Kashmiri origin who have married outside the state.
The provision impedes citizens from other parts of the country from settling permanently in J&K, buying property in J&K and taking up state government jobs.
The petitions claim that since only Parliament has the power to amend the Constitution, the Presidential order issued under Article 370 to bring Article 35A into force is invalid. Article 370 is the constitutional provision that recognises the special status of Jammu and Kashmir after it became part of India. The state under Article 370 retained its autonomy to govern itself and frame its own constitution except for three areas — defence, communication and external affairs.
However, since 1954, 41 such presidential orders have been issued, extending the application of many parts of the Indian Constitution to Jammu and Kashmir. Political parties in the state have cited this to argue that any declaring the presidential order relating to 35A invalid can adversely impact the constitutional relationship between India and Jammu and Kashmir.
Dilution of Article 35A could potentially change the demography of the Valley, especially since the provision was enacted to protect the culture and the distinct character of the region.
While Jammu and Kashmir had filed an affidavit indicating its position that Article 35A is legally sound, the central government left room for speculation by seeking more time to record its position since the issue is “sensitive and required larger debate.”
The BJP has had a clear stand that both Articles 35A and 370 must be abrogated and has promised this in successive election manifestos, including in 2019.
Political leaders in the Valley have urged the Centre to desist from making changes to the law.
Former chief minister Mehbooba Mufti warned the central government against scrapping the controversial law. “We want to tell the Central government that tinkering with Article 35A will be akin to setting a powder keg on fire,” she said on Sunday while addressing a meeting in Srinagar.
The court has adjourned the case and has deferred hearings at least six times since December 2018. The National Conference, the Jammu and Kashmir unit of the Communist Party of India (Marxist) have sought to be heard by the apex court.
The petitions are likely to be heard by a three-judge bench headed by CJI Ranjan Gogoi since he holds the roster for writ petitions.
The cases have not been heard since CJI Gogoi took office in October last year. Since 2014, the case has been heard over 20 times and is now pending for final hearing.
“The case has been delayed citing talks by the interlocutor, panchayat elections, national elections and now the Amarnath Yatra. It would be wonderful if the Centre makes an intervention. Ultimately, whatever the court decides, it will be on the Centre to implement it,” said Charu Wali Khanna, one of the petitioners who challenged the law on the ground of gender discrimination.
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