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.
  • 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 validity of the negotiations which led to the adoption of Article 370 is also questioned.
  • The Centre also said an interlocutor has been appointed and the talks are going on. 
What is the contention?
  • 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.
  • 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.
  • 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.
  • 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.