Answer Writing Practice for UPSC IAS Mains Exam: Paper - III (General Studies – II) - 12 October 2018


Answer Writing Practice for UPSC IAS Mains Exam


UPSC Syllabus:

  • Paper-III: General Studies -II (Governance, Constitution, Polity, Social Justice and International relations)

Q. Should article 35A of Indian constitution be scrapped? Critically comment. (250 words)

Model Answer:

Approach:

  • Why in news?
  • Background
  • Article 35A
  • Should Article 35A be abolished?
  • Conclusion

Why in news?

Currently, the Supreme Court is looking into the validity of Article 35A and protests are going on in Jammu and Kashmir against the Article being altered.

Background

  • Jammu and Kashmir became a part of India through instrument of accession signed by its ruler Hari Singh in October 1947.
  • After J&K's accession, Sheikh Abdullah (Sadr-i-Riyasat) negotiated J&K's political relationship with New Delhi, which led to the inclusion of Article 370 in the Constitution. Article 370 guarantees special status to J&K, restricting Union's legislative powers to three areas: defense, foreign affairs and communications.
  • However, under the Delhi Agreement 1952 between Abdullah and JL Nehru, several provisions of the Constitution were extended to J&K via Presidential Order in 1954 including Article 35A.

Article 35A

  • Article 35A was added to the Indian constitution through a presidential order of 1954with the then J&K government's concurrence. The order was issued by the then President Rajendra Prasad on 14 May 1954 in exercise of the powers conferred by clause (1) of Article370.
  • Article 35A allows the Jammu and Kashmir legislature to define the list of 'permanentresidents' of the state, who are eligible to vote, work for the state government, own land, secure public employment and college admissions etc. Non-permanent residents are deniedall these rights.

Should Article 35A be abolished?

The legality of Article 35A is being challenged on the grounds that it was not added to the constitution by a constitutional amendment under Article 368. The following arguments support its abrogation:

  • Article 35A was not added to the Constitution following the procedure prescribed for an amendment of the Constitution of India under Article 368. Hence it violates the Constitutional procedure established by law.
  • The resolutions passed by the state legislature under the article give succession rights to the children of men who are married to non-permanent women residents, but deny the same to children of women in the same position. It facilitates the violation of the rights of womento marry a man of their choice by not giving the heir any right to property, if the woman marries a non- permanent resident.
  • The social development also takes a backseat as entrepreneurs and professionals are not willing to settle in the state due to restrictions on acquiring property, employment etc.
  • The Permanent Resident clarification backed by the Article 35A violates the Article 14 of the Constitution, which confers the Fundamental right to equality before the law. Article 35A is in direct violation of the fundamental right as non-resident Indian citizens cannot have the rights and privileges, same as the permanent citizens of Jammu and Kashmir.

However, many experts call this move filled with ‘communal minded majoritarian’ intentions and support the existence of Article 35A on the following grounds:

  • As per the Constitutional experts, there are various articles in the Constitution that contain special provisions (Article 371 and 371A-1) with regard to various Indian states. Article 370 is part of the original Constitution, and hence, Article 35A also flows from it.
  • It seeks to protect the demographic status of the state of Jammu and Kashmir in its prescribed constitutional form.
  • It does not extend something new to the state but only clarifies the existing relationship between the Constitution of India and the Constitution of Jammu and Kashmir.
  • In over six decades, the President of India has issued 41 Constitutional Application orders that relate to the applicability of various provisions of the Indian Constitution to Jammu and Kashmir, including, replacing the elected Sadr-e-Riyasat with a governor chosen by the union government and changing the ‘Prime Minister’ of the state to the Chief Minister. If Article 35A is a violation of the Constitution then such a judgement will have to be made applicable to all such orders from 1950 till date.

Conclusion

Jammu and Kashmir is an integral part of India. The state occupies a special status in the political realm of the country due to historical and geographic factors. The Article 370 (and within it Article 35A) of the Constitution accords legal backing to this understanding and acts like a bridge between the Indian Constitution and the Constitution of Jammu and Kashmir. The judiciary being the custodian of the Constitution is the right platform to decide upon the issue.

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