Question

Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens. In this context critically analyze whether Article 35 A should be scrapped or not?

Answer 1

Article 35A prohibits people from outside the state of Jammu & Kashmir to work, settle or own property in the state.Article 35A was incorporated into the Constitution in 1954 by The Presidential Order which was issued under Article 370 (1) (d) of the Constitution.

Arguments in favour of scrapping Article 35A

• Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution. It creates a divide in the society. It is against the very spirit of oneness of India.
• The parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution. Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution. So parliamentary process of law making was bypassed.
• Article 370 was only a ‘temporary provision’ to help bring normality in Jammu and Kashmir and strengthen democracy in that State, it contends. The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.
• Article 35A restrict the basic right to property if a native woman marries a man not holding a permanent resident certificate. “Her children are denied a permanent resident certificate, thereby considering them illegitimate. So it is discriminatory for women.

Arguments against scrapping Article 35A

• Scrapping the Article 35A is seen as an assault on the special status of Jammu and Kashmir. Such a move only increase the alienation of kashmiris against the national government.
• Certain types of restrictions on purchase of land are also in place in several other states, including some in the Northeast and Himachal Pradesh. Domicile-based reservation in admissions and even jobs is followed in a number of states, including under Article 371D for undivided Andhra Pradesh. So providing local preference in job , residence under article 35 A cannot be reason for scrapping of article 35 A.
• The rights of the state legislature are not unlimited and can be given only in the case of – Employment, Property, Settlement and Scholarship.

Way forward:
Article 35 A and Article 370 act as a bridge between people of kashmir and central government. So there should be proper discussion and debate on these articles in the spirit of maintaining democratic process, sovereignty and integrity of the country.