Escolar Documentos
Profissional Documentos
Cultura Documentos
SUMMARY
Article 35A confers certain rights to the Jammu and Kashmir Legislature to restrict
citizens of other states of Union of India from residing or settling in three of its it’s
provinces which includes Jammu, Kashmir Valley and Ladakh. It became a part of the
Indian Constitution through a presidential order, i.e., The Constitution(Application to
Jammu and Kashmir Order) 1954, leveraging the powers laid down by clause(1) of
Article 370 of the Indian Constitution. On July of 2018, a petition was filed by an NGO
Challenging its Constitutionality as the aforesaid article is in contravention with Article
19(1)(d) as its restricts a citizen of an Indian Union from settling in Jammu and Kashmir.
Supreme Court Lawyer Charu Wali Khanna has filed another petition stating that the
aforementioned Article violates Article 14. The primary crux of the petition filed is that a
women from Jammu and Kashmir loses her right to reside if she gets married to a person
from another state. The provisions enshrined in Article 35A is discriminatory on Women
and it directly contravenes with Article 14,i.e Right to Equality. The crux of the
aforementioned issue is that, should the Government of India ignore the historical pact it
had with its king, Maharaja Hari Singh who advocated for complete autonomy for the
State of Jammu and Kashmir by adhering to the principles enshrined in its Constitution?
Adding on to that it is imperative to look at how it would resonate with the people of
Jammu and Kashmir as it alters the demographics and culture of the state.
In British India there were over 565 princely states that were indirectly controlled by the
British Empire. The British gave a greater deal of autonomy to some of the states,
However defence and external affairs was still administered by the British. The
Government of India Act,1935 introduced the concept of ‘Instrument of Accession’
where a certain ruler can accede his princely state or kingdom to the Union of India.
Almost all princely states except Hyderabad and Jammu and Kashmir. It is imperative to
note that the princely state of Hyderabad was acceded through a military operation which
was codenamed as ‘operation polo’ but Jammu and Kashmir posed a different problem to
India.
It is to be noted that Jammu and Kashmir was ruled by Maharaja Hari Singh who wanted
his kingdom to be Independent and later signed the Standstill agreement to express his
intention. Sheikh Abdullah, the leader of Kashmir’s largest political party, National
Conference despised the dogra rule led by Maharaja Hari Singh and was expecting him to
abdicate his position as the ruler of the kingdom. In the meantime, the Islamic Republic
of Pakistan wanted to occupy Kashmir. So it sent certain tribesman from the North
Western Frontier Province(now known as Khyber Pakhtunkhwa) which was assisted by
the Pakistani Army and its Intelligence(Inter Services Intelligence) to annex the kingdom
by force. As soon as he got to know about Pakistan’s intention to annex the kingdom, he
immediately sough India’s help to push back the Invading Tribesman. India conceded to
the Maharaja’s demands on two conditions, firstly, he must sign the instrument of
accession and secondly, he must set up an interim government led by Sheikh Abdullah.
The king conceded to the demands put forth by India. Later, Indian troops were airlifted
in Srinagar where they successfully managed to push back the forces and secured the
provinces of Jammu, the Kashmir valley and Ladakh and left Pakistan with some parts of
Jammu(now known as Azad Jammu and Kashmir) and Northern Areas(now known as
Gilgit-Baltistan). Later, a UN sponsored Ceasefire came into force and it is imperative to
note that the territories occupied lost by India is still under Pakistani Occupation. As of
now, India has taken little to no steps to retrieve the territories that was forcibly annexed
by Pakistan.
When the Constitution of India came into force in January 26, 1950, special provisions
were conferred to state of Jammu and Kashmir which was considered as a temporary
provision but exists till date. After Independence, Sheikh Abdullah declined to accede
completely to the Union of India amid chaos. Whilst most of the states were readying to
adopt the newly crafted constitution, Jammu and Kashmir declined to do the same in view
of its political predicament. In order to fill the void, a temporary constitution, i.e, Article
370 was adopted exclusively for the state of Jammu and Kashmir. This temporary
provision will be in force until normality is restored to the state.
In 1981, Jammu and Kashmir Legislative Assembly passed the J&K Resettlement Act
which was approved by the Kashmiri majority of the state. It opened the borders for all
people of Kashmiri descent who fled to Pakistan to return to Jammu and Kashmir as
Legitimate Citizens. But Non-Muslim Refugees from Pakistan and Occupied Kashmir
were exempted from this provision. It is to be noted that Uyghurs from Xinjiang who fled
to Kashmir before and prior to Chinese occupation were granted the status as State
Subjects. It can easily be implied that previous and current incumbents were inclined
towards the Muslims. It can be considered as an attack on the Secular and Democratic
fabric of our Country.
ARTICLE 35A CONTRAVENES WITH THE FOLLOWING:
CONCLUSION:
With reference to the aforementioned facts it can easily be said that Article 35A is clearly
holding the state and its subjects bac. In view of its economic and political predicament,
various militant and separatist organisations have gained a stronghold in the state of
Jammu and Kashmir. It should be noted that it took our country and its judiciary many
decades to abolish triple talaq. This fact actually makes us question the credibility and
reliability of our Institutions. Article 35A offers breathing space for many separatist and
militant organisations like the Hurriyat, Jammu and Kashmir Liberation Front(JKLF),
Lashkar-e-Taiba and Jaish-e-Muhammad which in turn has helped them to exert their
influence. The existence of Article 35A is not conducive to the democratic, secular and
egalitarian fabric if our Country and it needs to be revoked.