Article 35A of Constitution of India

The Text of the Article 35A

"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."

Background

When this Presidential Order was issued the Congress Party was ruling at the Center and Rajendra Prasad was the President. Sheikh Abdullah of the party Jammu and Kashmir National Conference (JKNC) was prime Minister of the state of Jammu and Kashmir. This article, without any discussion in the Parliament, was introduced by the executive head of the biggest democracy of the world and the legal experts think that this article is in violation with the United Nations Universal Declaration of Human Rights 1948.

The critics of procedure of insertion

The insertion of this additional Article (Article 35A) is done in a way that it is not apparent to any lawyer or law student who reads the Bare Act of the Constitution of India. This is because it is not included in the text of the main document of provisions set out in Constitution of India. Experts conclude that there are pure political reasons behind this procedure because it is not the standard way of inserting an article in the Constitution.

Article 35A was not added to the Constitution by following the procedure prescribed for amendment of the Constitution of India under Article 368. Therefore, it is, allegedly, ultra vires the Constitution since it violates the Constitutional procedures established by law.

1. It has been brought about by the executive organ when actually the right of amendment of the Constitution lies with the legislative organ. Therefore, this Article violates the principle of Separation of Power which is a basic feature based on which the Indian Democracy is run.
2. It violates the democratic principle on which the Indian nation was formed, in the following way - The members of the legislature are elected representatives of the people. When any Article is added to the Constitution it is done so by 2/3rd majority of both houses of the Union Parliament present and voting in favor of such addition. These representatives are thereby expressing the representative will of the people of the country. This democratic procedure was violated in this case and the will of the people was not ascertained.
3. When the bare text of the Constitution is read, wherever there is an addition of any Article or repeal or amendment to the provisions, a footnote is inserted to inform the reader by which Constitutional Amendment the change or modification was made. In this case, there was no Constitutional Amendment made as is the usual practice. Therefore, the power holders found it inconvenient to insert the Article 35 A into the bare text. The footnote would have to read Presidential Order and the reader would immediately question the validity of the procedure followed for its addition. So as to prevent many uncomfortable questions being asked, the best option was to prevent the addition of the Article into the Bare text, thereby concealing its illegality.
4. Even Article-368 of Constitution of India has been unconstitutionally amended in the said Presidential Order. So strangely the amendments made to Constitution have been concealed from general audit by not mentioning the same in the text of editions of main constitution and the amendments have been mentioned in the Appendix-1 {Constitution ( (application to Jammu and Kashmir ) Order 1954} and the Appendix-II ( Re- statement, with reference to the present text of the Constitution, of the exceptions and modifications subject to which the Constitution applies to the State of Jammu and Kashmir).

1. It facilitates the violation of the basic right of women to ‘marry a man of their choice’ by not giving the heirs any right to property if the woman marries a man not holding PRC. Therefore, her children are not given Permanent Resident Certificate and thereby considering them illegitimate – not given any right to such a woman’s property even if she is a permanent Resident.
2. It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like ‘Gorkha’ who have lived there since 1846, but have not been given proper Permanent Resident Certificates, even after false promises were made to them.
3. It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Safaikaramchari, scheduled Caste and Scheduled Tribe people who have lived there for three generations but have not been given Permanent Resident Certificates, even after false promises were made to them.
4. It gives a free hand to the state government and politicians to discriminate between citizens of India, on an unfair basis and give preferential treatment to some by trampling over others.
5. Therefore, it is abundantly clear that the evil of ‘Nepotism’ has been given a pronounced power in the hands of bandit politicians in the State of J&K, to ride roughshod over the rights of commoners.

Permanent Resident Certificate (PRC)

Section- 6 of J&K Constitution itself lays down that (1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954- (a) he was a State Subject of Class I or of Class II ; or (b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date i.e. about 15 June 1944.

Power Politics

1. J&K Constituent Assembly incorporated in J&K Constitution discriminatory provisions under Section-51 (Qualifications for membership of the Legislature.- A person shall not be qualified to be chosen to fill a seat in the Legislature unless he is a Permanent Resident of the State), Section- 127 (Transitional provisions.-Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as service or post under the State, shall continue in force so far-as consistent with the provisions of this Constitution) and Section-140 (The elections to the Legislative Assembly shall be on the basis of adult suffrage ; that is to say, every person who is a permanent resident of the State and who is not less than Eighteen years of age on such date ….), etc.
2. No person who is not a Permanent Resident of J&K ( Permanent Resident Certificate of J&K ) can own property in J&K.
3. No person who is not a Permanent Resident of J&K (Permanent Resident Certificate of J&K) can obtain job with J&K Government.
4. No person who is not a Permanent Resident of J&K ( Permanent Resident Certificate of J&K ) can join any professional college run by government of J&K or get any form of government aid out of government funds.

The Permanent Resident Provision serves to:

1. Maintain the stagnation of Power Politics in the State of Jammu and Kashmir.
2. It prevents any change being brought about in the population demographic.
3. It protects and preserves the monopoly of business in the hands of a few who have lived there for generations.
4. Therefore, it follows the ‘order of things’ that keeps backward villages everywhere in the world in the grip of the village bandits under the garb of protecting traditional order or power structure.