Answer Writing Practice for UPSC IAS Mains Exam: Paper - III (General Studies – II) - 23 January 2019


Answer Writing Practice for UPSC IAS Mains Exam


UPSC Syllabus:

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

Q. Discuss the grounds on which the validity of article 35A is being challenged. What would be the possible impacts of repealing this article? (250 words)

Model Answer:

Approach:

  • Why in news?
  • Introduction
  • Grounds of challenging 35A
  • Impacts of repealing this article
  • Conclusion

Why in news?

The Supreme Court on Jan 22, 2019 said it will be taking an “in-chamber” decision on the listing of petitions challenging the constitutional validity of Article 35-A.

Introduction

Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

Grounds of challenging 35A

  • Article 35A is being challenged on the ground that it was introduced through illegitimate means. It was introduced by a Presidential Order, issued by Rajendra Prasad, in 1954 and never presented before Parliament. As a result, the article is extra-constitutional, meaning that it has not been added to the text of the Constitution. It is only the Parliament, not the executive, which can amend the Constitution. 
  • The article 35A denies property rights to women who marry citizens from outside Jammu and Kashmir whereas a male resident will not lose such a right after marriage to a woman from outside. It is thus discriminatory against women.
  • 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 women to marry a man of their choice by not giving the heir any right to property, if the woman marries a non- permanent resident.
  • 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. 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 Indian Constitution.
  • Article 35A was violative of the Basic Structure of the Constitution as it was introduced outside the ordinary amending procedure prescribed under Article 368.
  • The petitioners argue that Jammu and Kashmir became an “integral part of India” when it acceded to the Union, so there is no question of special status or treatment.
  • The Constituent Assembly involved in the drafting of the Constitution had four representatives from Kashmir and the State was never accorded any special status in the Constitution. Article 370 was only a ‘temporary provision’ to help bring normalcy in Jammu and Kashmir and strengthen democracy in that State. The Constitution makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.

Impacts of repealing this article

  • Identity- The provisions of the article have their roots in 1927 laws brought by the last Dogra ruler of Jammu and Kashmir, Maharaja Hari Singh. Protecting the Dogras from domination by elite and affluent non-state subjects, mostly from neighbouring Punjab, was the prime motive. Repealing Art 35A would largely impact the identity and interests of the Dogras.
  • Industry- Art 35A specifies some restrictions on non-permanent residents of the state to carry on business in the state. So, repealing the law is likely to promote the development of the presently weak Jammu and Kashmir industries.
  • Opportunities- Concessions in recruitment, professional academic courses, scholarships and other financial assistance will become more competitive, depriving many of the advantages at present. Also, influx of “non-subjects” would increase pressure on landholdings, farm activity, etc given the withdrawal of residency restrictions. This may result in shrinking opportunities for the local skilled and unskilled labour, farmers, etc.
  • Integration- The introduction of Art 35A safeguarded the rights and the distinct identity of the people of Jammu and Kashmir. This essentially minimized the scope for deprivation and conflicts and thus ensured the peaceful coexistence of the state with the nation. Arguing that removing Art 35A would lead to the integration of Jammu and Kashmir with the rest of India contradicts the above reality. It would rather only make them more insecure and affect the smooth relationship between the state and the nation.

Conclusion

The Supreme Court should admit the petitions challenging the Article 35-A and decide on its constitutional validity through a Constitution Bench.

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