Scrutinizing And Scrapping The Legitimacy Of Article 35A

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Article 35A, that grants special rights and privileges to the individuals of Jammu & Kashmir, is confronting a legitimate test in the Apex Court. A discussion over continued the constitutional provisions has picked up in recent months, once many pleas were filed within the Apex Court questioning the validity of Article 35A.

On Transfiguration, the court aforementioned a three-judge bench would decide whether or not the pleas ought to be referred a five-judge Constitution bench for examining the larger issue of alleged violation of the basic structure of the Constitution.

The Kashmir centrical political parties are demanding for shielding Article 35A, that the aforementioned was the sole bridge between Asian nation and J&K. However, the BJP and alternative parties of Jammu region are pressurising for its invalidation.

What Is Article 35A?

Article 35A is an immunity to acts being challenged for violation of the Constitution of the country. The petition filed by Mr Upadhyay has stricken Article 35A stating it infringes namely, Article 14, 15, 16, 19 and 21, as:

  • The disputed provision violates woman ‘right to marry a person according to her choice’, by not giving her heirs any right to property if she marries a man not holding Permanent Resident Certificate (PRC);
  • The mechanical segment, i.e the industrial sector and the private sector is regressive due to ownership restrictions in the state. As non-residents of the state of Jammu & Kashmir are not allowed from purchasing and possessing properties.
  • Students of other states are not granted admission in state engineering, medical and professional universities, violating Article 14 and 15.
  • Not only the Residents of other state are not allowed to take govt, jobs in the concerned state but also no voting rights are given to them.
  • Qualified & Specialised doctors, engineers and teachers refrain from residing in the state.
  • Grave violation of the fundamental rights of the SC and ST residing in the state from prolong period. Dalits & Valmikis, were granted the PRC subject to the condition that they and their future generations would serve as safai-karmacharis (scavengers);

Procedural Downside

It has been observed that Article 35A stricken by following the due process recommended for the amendment of the Constitution under Article 368; Article 370 gives no authoritative or official powers on the President to include or erase any provision of the Constitution of India which comes under the exclusive function of the Parliament. Article 35A was never discussed in the Parliament which implies that the President had avoided the lawmaking body, i.e, the legislature to incorporate this article. This would likewise infer that the power of amendment of the Parliament under Article 368 of the Constitution was abbreviated in its application to J&K.

Question Of Legality

On August 27 date a three-judge bench headed by Chief Justice Dipak Misra will consider the question of legality and will check the validity of Article 35A. Ashwini Upadhyay a renowned advocate and BJP leader filed a petition in order to strike down the impugned provision.

Scrutinizing And Scrapping The Legitimacy Of Article 35A
Justice Dipak Misra, Chief Justice of India

The State of J&K was granted a special status by incorporating Article 35A in the Constitution of India through an order of President Rajendra Prasad (1954) on the advice of the Jawaharlal Nehru, the then Prime Minister and his Cabinet. The provision gives the State Legislature complete discretion to determine the ‘permanent residents’ of the state. The special status would grant them special rights and privileges in different sector.

The bench comprising Chief Justice Dipak Misra and Justice A. Khanwilkar had adjourned the crucial hearing on as many as five petitions “to the week commencing from August 27” on the grounds that they pertained to the challenge to a Constitutional scheme and could not be heard as the third judge, Justice D.Y. Chandrachud, was not present on that day.

Author’s Perception

If Article 35A is “removed, the BJP will vanish from the state”. “It is a battle for the liberation of our community from the yoke of worst-ever slavery, challenging the constitutional validity of Article 35A in the Supreme Court. “If Article 35A Mr with, the day will not be far when the youth of Jammu will also pick up guns and stones. The BJP is selling dreams and want to sacrifice the interests of Jammu to achieve its goal of 300 plus (seats) in the upcoming parliamentary elections,” A disgruntled BJP leader told PTI.

For more updates on Jammu & Kashmir, keep visiting Libertatem Magazine

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