Deciding on Art 35-A

Why in news?
The Supreme Court has recently adjourned the hearing on petitions relating to Article 35-A.
What is Art 35-A?
  • Art 35-A empowers the Jammu and Kashmir Constitution to define “permanent residents” (PR) of the state.
  • Only the J&K assembly can change the definition of PR through a law ratified by a two-thirds majority.
  • It provides some special rights and guarantees to safeguard the unique identity of the people of J&K.
  • It was brought in by a presidential order in 1954.
What is the case?
  • The Supreme Court is hearing petitions challenging the validity of Art 35A.
  • The legitimacy of the Instrument of Accession, by which J&K united with India, is in question.
  • The validity of the negotiations which led to the adoption of Article 370 is also questioned.
  • [Article 370 underscores J&K’s special legal status, and has actually given the Centre the power over that state.]
  • The case has been adjourned as J&K administration and Centre cited local poll preparations.
  • The Centre also said an interlocutor has been appointed and the talks are going on. 
What is the contention?
  • Rights – From a purely individual rights or economic integration perspective, the case for 35A is not clear-cut.
  • There is a contention that any restrictions differentiating residents and non-residents are inherently discriminatory.
  • But this argument would not only invalidate 35A with respect to Kashmir alone.
  • Several other states including Mizoram, Nagaland and Himachal would also be affected by it.
  • Constitution – Art 370 is the only mechanism that allows the Indian Union to legally exercise power in Kashmir.
  • Abrogating that mechanism is not just abrogating a specific policy.
  • It would amount to repudiation of an important part of the legal structure which India’s claims rest upon.
What had the Court’s stance been?
  • As a matter of law, the status of Art 35-A had been considered by the Supreme Court in the past.
  • The Court had observed that the Indian state needs to honour the terms and conditions in different instruments of accession.
  • Accordingly, the SC had noted that essentially, the laws governing J&K are part of a political settlement.
  • So it is up to the political process to modify the terms of the settlement, and not that of the judiciary.
How to deal with it?
  • The challenge in leaving it to political process is that the application of this principle could be deeply politicised.
  • So the Supreme Court can instead uphold the validity of 35A through its judgement.
  • Nevertheless, it should also ensure to not completely leave it to the mercy of the J&K assembly when it comes to discrimination issues.


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