Article in J and k part 2

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Today i am going to discuss about which
Modi and his government had won victory yestetday. I had discussed about one article that is "Article 370". Further i talk about the another article, Jammu and Kashmir is with India after ban of this article. That is article 35(A).

Article 35A of the Indian Constitution was
an article that empowered the Jammu and Kashmir state's legislature to define
"permanent residents" of the state and
provide special rights and privileges to
those permanent residents. It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to
Jammu and Kashmir) Order, 1954 –
issued by the President of India on 14 May 1954, exercising the powers conferred by the clause (1) of the Article 370 of the Indian Constitution, and with the concurrence of the Government of the State of Jammu and Kashmir.
On 5 August 2019, the President of India
has issued a Presidential Order, whereby
all the provisions of the Indian Constitution are to apply to the State without any Special provisions. This would imply that the State's separate Constitution stands abrogated, including the privileges allowed by the Article 35A.

Background :-
Prior to 1947, Jammu and Kashmir was a
princely state under the British
Paramountcy. The people of the princely
states were "state subjects", not British
colonial subjects. In the case of Jammu
and Kashmir, the political movements in
the state in the early 20th century led to
the emergence of "hereditary state
subject" as a political identity for the
State's people. In particular, the Pandit
community had launched a "Kashmir for
the Kashmiri" movement demanding that
only Kashmiris should be employed in
state government jobs. Legal provisions
for the recognition of the status were
enacted by the Maharaja of Jammu and
Kashmir between 1912 and 1932. The
1927 Hereditary State Subject Order
granted to the state subjects the right to
government office and the right to land
use and ownership, which were not
available to non-state subjects.[5][6]
Following the accession of Jammu and
Kashmir to the Indian Union on 26 October 1947, The Maharaja ceded control over defence, external affairs and
communications (the 'ceded subjects') to
the Government of India . The Article 370
of the Constitution of India and the concomitant Constitutional Order of 1950
formalised this relationship. Discussions
for furthering the relationship between the State and the Union continued,
culminating in the 1952 Delhi Agreement,
whereby the governments of the State and the Union agreed that Indian citizenship would be extended to all the residents of the state but the state would be empowered to legislate over the rights and privileges of the state subjects, who would now be called permanent residents.
In his statement to the Lok Sabha on the
Delhi agreement, Nehru has said:
The question of citizenship arose
obviously. Full citizenship
applies there. But our friends
from Kashmir were very
apprehensive about one or two
matters. For a long time past, in
the Maharaja's time, there had
been laws there preventing any
outsider, that is, any person
from outside Kashmir, from
acquiring or holding land in
Kashmir. If I mention it, in the
old days the Maharaja was very
much afraid of a large number of Englishmen coming and
settling down there, because the
climate is delectable, and
acquiring property. So although
most of their rights were taken
away from the Maharaja under
the British rule, the Maharaja
stuck to this that nobody from
outside should acquire land
there. And that continues. So the
present Government of Kashmir
is very anxious to preserve that
right because they are afraid,
and I think rightly afraid, that
Kashmir would be overrun by
people whose sole qualification
might be the possession of too
much money and nothing else,
who might buy up, and get the
delectable places. Now they
want to vary the old Maharaja’s
laws to liberalise it, but
nevertheless to have checks on
the acquisition of lands by
persons from outside. However,
we agree that this should be
cleared up. The old state’s
subjects definition gave certain
privileges regarding this
acquisition of land, the services,
and other minor things, I think,
State scholarships and the rest.
So, we agreed and noted this
down: 'The State legislature
shall have power to define and
regulate the rights and
privileges of the permanent
residents of the State, more
especially in regard to the
acquisition of immovable
property, appointments to
services and like matters. Till then the existing State law
should apply.'
Following the adoption of the provisions of the Delhi Agreement by the Constituent Assembly of Jammu and Kashmir, the
President of India issued The Constitution (Application to Jammu and Kashmir)
Order, 1954, through which Indian
citizenship was extended to the residents
of the state, and simultaneously the Article 35A was inserted into the Indian
constitution enabling the State legislature to define the privileges of the permanent
residents.

Text of the article:-
"Saving of laws with respect to permanent residents and their rights. —
Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the
State:(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent
residents any special rights and privilegesor imposing upon other persons any restrictions as respects—
(i) employment under the State
Government;
(ii) acquisition of immovable property in
the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other
forms of aid as the State Government
may provide,
shall be void on the ground that it is
inconsistent with or takes away or
abridges any rights conferred on the other
citizens of India by any provision of this
part."

Enactment :-
The Constitution (Application to Jammu
and Kashmir) Order, 1954 was issued by
President Rajendra Prasad under Article
370, with the advice of the Union
Government headed by Jawaharlal
Nehru. It was enacted as a
subsequent to the '1952 Delhi agreement', reached between Nehru and the then
Prime Minister of Jammu and Kashmir
Sheikh Abdullah, which dealt with the
extension of Indian citizenship to the
Jammu and Kashmir "state
subjects"The state is empowered, both in the Instrument of Accession and the Article 370, to decree exceptions to any extension of the Indian Constitution to the state, other than in the matter of ceded subjects. So Article 35A is seen as an exception allowed by the Article 370, clause(1) (d).
Bakshi Ghulam Mohammad of the Jammu and Kashmir National Conference was the Prime Minister of Jammu and Kashmir at the time of the 1954 Presidential order.
As the Article 35A was added to the
Constitution by the executive head without any discussion in the Parliament,
questions have been raised about the
manner of its enactment.

Permanent residents:-
The Jammu and Kashmir Constitution, which was adopted on November 17,
1956, defined a Permanent Resident (PR)
of the state as a person who was a state
subject on May 14, 1954, or who has been a resident of the state for 10 years, and
has “lawfully acquired immovable property in the state”. The Jammu and
Kashmir state legislature can alter the
definition of permanent residents or
modify the privileges applicable to them
through a law passed with two-thirds
majority.Constantin & Kössler, Jammu and Kashmir: A case of eroded autonomy
(2014, p. 126) Jammu and Kashmir Constituent Assembly incorporated in Jammu and Kashmir Constitution discriminatory provisions under Section 51 (Qualifications for membership of the
Legislature – A person shall not be
qualified to be chosen to fill a seat in the
Legislature unless he is a Permanent
Resident of the State), Section 127
(Transitional provisions – Until other
provision is made in this behalf under
this Constitution, all the laws in force
immediately before the commencement
of this Constitution and applicable to
any public service or any post which
continues to exist after the
commencement of this Constitution, as
service or post under the State, shall
continue in force so far-as consistent
with the provisions of this Constitution)
and Section 140 (The elections to the
Legislative Assembly shall be on the
basis of adult suffrage; that is to say,
every person who is a permanent
resident of the State and who is not less
than Eighteen years of age on such date
...), etc.
No person who is not a Permanent
Resident of Jammu and Kashmir can
own property in Jammu and Kashmir.
No person who is not a Permanent
Resident of Jammu and Kashmir can
obtain job within Jammu and Kashmir
Government. No person who is not a Permanent Resident of Jammu and Kashmir can join any professional college run by government of Jammu and Kashmir or get any form of government aid out of government funds.

Criticism:-
In July 2015, an RSS-backed think-tank
called the Jammu & Kashmir Study Centre
first came up with the idea to challenge
Article 35A in the Supreme Court. A
petition was filed in the Delhi High Court
against the Article. Later, it was also challenged in the Supreme Court.The legality issues pointed are:
1. Article 35A was not added to the
Constitution by following the
procedure prescribed for amendment
of the Constitution of India under
Article 368. Article 370 does not
anywhere confer on the President
legislative or executive powers so
vast that he can amend the
Constitution or perform the function
of Parliament. It has been brought
about by the executive organ when
actually the right of amendment of
the Constitution lies with the
legislative organ. Therefore, it is,
allegedly, ultra vires the basic
structure of the Constitution since it
violates the Constitutional
procedures established by law.
2. Besides carrying out many
modifications and changes, this order
'added' a new "Article 35A" to the
Constitution of India. Addition or
deletion of an Article amounted to an
amendment to the Constitution which
could be done only by Parliament as
per procedure laid down in Article
368. But, Article 35A was never
presented before Parliament. This
meant the President had bypassed
Parliament in this order to add Article
35A.
3. The PRC classification created by
Article 35A suffers from the violation
of Article 14, Equality before the Law.
The non-resident Indian citizens
cannot have the rights and privileges,
same as permanent residents of
Jammu and Kashmir.
4. This also meant that the amending
power of Parliament under Article
368 of the Constitution itself was
abridged in its application to Jammu
and Kashmir, another amendment,
without any reference to Parliament.
When the President of India does not
have legislative powers, he
performed the function of
Parliament.
The main objections raised are:
1. It facilitates the violation of the right
of women to ‘marry a man of their
choice’ by not giving the heirs any
right to property, if the woman
marries a man that is not a
permanent resident. Therefore, her
children are not given Permanent
Resident Certificate and thereby
considering them unfit for inheritance
– not given any right to such a
woman's property even if she is a
permanent resident.
2. It facilitates the free and unrestrained
violation of fundamental rights of
those workers and settlers like
Scheduled Caste and Scheduled Tribe people who have lived there for
generations. The Valmikis who were
brought to the state during 1957 were
given Permanent Resident
Certificates on the condition that they
and their future generations could
stay in the state only if they
continued to be safai-karmacharis
(scavengers). And even after six
decades of service in the state, their
children are safai-karmacharis and
they have been denied the right to
quit scavenging and choose any
other profession.
3. The industrial sector & whole private
sector suffers due to the propertyownership restrictions. Good doctors don't come to the state for the same reason.
4. Children of non-state subjects do not
get admission to state colleges.
5. It ruins the status of West Pakistani
refugees. Being citizens of India they
are not stateless persons, but being
non-permanent residents of Jammu
and Kashmir, they cannot enjoy the
basic rights and privileges as being
enjoyed by permanent residents of
Jammu and Kashmir.
6. It gives a free hand to the state
government and politicians to
discriminate between citizens of
India, on an unfair basis and give
preferential treatment to some by
trampling over others, since the non-
residents of the state are debarred
from buying properties, getting a
government job or voting in the local
elections

Support:-
According to constitutional expert A.G.
Noorani, all the legal arguments against
the article are groundless, and are raised
with "communal-minded majoritarian"
intentions. He refers to the various Articles in the Constitution, that similarly provide special rights to other Indian states, and remarks that no objections were raised on them. Since Article 370 was enacted on 26
November 1949 as part of the Constitution of India by the Constituent Assembly of India which was a sovereign body, he remarks, Article 35A "flows inexorably" from it. He recalls the Sheikh Abdullah's report to Kashmir's Constituent Assembly on 11 August 1952, which said, “it was agreed that the State legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State more especially in regard to acquisition of immovable property, appointments to services and like matters. There are historic reasons which necessitate such constitutional
safeguards as for centuries past, the
people of the State have been victims of
exploitation at the hands of their well-to-do neighbours."
Article 35 A protects the demographic
status of the Jammu and Kashmir state in its prescribed constitutional form. Scholar Srinath Raghavan states, Kashmiris are
apprehensive that any move to abrogate
Article 35A would open the gates for a
demographic transformation of the valley,
an objective advanced by the Sangh
Parivar groups as an ideal solution to the
Kashmir issue. He further says that the
state's autonomy has been gradually
eroded by various governments of Delhi
through misuse of the provisions of Article 370, and remarks: "Kashmiris have come to regard the rights of permanent
settlement as the only remaining piece of
any meaningful autonomy." Former Chief
Minister of Jammu and Kashmir, Mufti
Mohammad Sayeed, while speaking about the issue of West Pakistani refugees, has
said, "before we do anything on this, we
need to allay genuine fears that there is an attempt to change the demographics of the state.” Noorani also points to the observations made by the High Court of Jammu & Kashmir in this regard, while delivering a judgement on 16 July 2015
"The Parliament has no power
to legislate law about the
subject's administration of
justice, the land & the other
immovable properties.
Article 35(A) of the Constitution
of India, which has been applied
to the State of Jammu and
Kashmir, not only recognizes
but clarifies the already existing
constitutional and legal position
and does not extend something
new to state of Jammu and
Kashmir. This article, on its
own, does not give anything new
to the State of Jammu and
Kashmir. Article 14 of the
Constitution of India, as has
been made applicable to the
State of Jammu and Kashmir,
thus, gave equal protection of
laws to the State
subjects/citizens as a class
apart. Similarly, article 19(1)(f)
of the Constitution of India,
which has been made applicable
to the State of Jammu and
Kashmir and till date continues
to be in force in the State,
recognizes the right to own,
hold and dispose of property,
which right otherwise is
inherent in the State
subjects/citizens of the State of
Jammu and Kashmir, who stand
defined in terms of Elans/Orders
of His Highness and the
Constitution of Jammu and
Kashmir.
Laws have their own universe.
They operate in matter and not
in vacuum. The laws are located
in time and space. In the State of
Jammu and Kashmir, the
immovable property of a State
subject/citizen, cannot be
permitted to be transferred to a
non State subject. This legal and
constitutional protection is
inherent in the State subjects of
the State of Jammu and Kashmir
and this fundamental and basic
inherent right cannot be taken
away in view of peculiar and
special constitutional position
occupied by State of Jammu and
Kashmir. Article 35-A is
clarificatory provision to clear
the issue of constitutional
position obtaining in rest of
country in contrast to State of
Jammu and Kashmir. This
provision clears the
constitutional relationship
between people of rest of
country with people of Jammu
and Kashmir."
As an amendment to, or modification of,
the 1954 order, 41 subsequent Presidential
orders have been passed afterwards.
According to the report of the State
Autonomy Committee, the central
government, through these Presidential
orders, extended 94 out of 97 entries in the Union List to Jammu and Kashmir, and made applicable to the state 260 out of 395 articles of the Indian Constitution.
They have been used to issue provisions
and make changes, which include -
replacing the elected Sadr-e-Riyasat
(President of the State) with a Governor
chosen by the Centre; changing the ‘Prime Minister’ of the state to Chief Minister;
extending the powers of the Supreme
Court and Election Commission to Jammu and Kashmir; and preventing the state Assembly from making any amendment to the Jammu and Kashmir Constitution. Jammu and Kashmir advocate Zaffar Shah says, Article 35A has been added in the Constitutional Application Order 1954 and by questioning it, the entire
Constitutional Application Order will have
to be questioned. If the Court rules that
Constitutional Application Orders are
invalid, such a judgment will have to be
made applicable to all the Constitutional
Application Orders from 1950 till date. The Constitutional link between the Union and the State will be snapped and the position of the State will be same as it was before constitutional arrangements were worked out. So, if the order of 1954 is snapped, Jammu and Kashmir can, in theory, return to the pre-1954 constitutional arrangement, where the Centre's powers
were restricted to Defence, Foreign Affairs and Communications alone, according to the Instrument of Accession. Zaffar Shah states it will also affect various provisions of the Constitution of the State and result
in Constitutional crisis.
Zaffar Shah adds that the scope and
extent of power of the President to apply
Constitutional provisions with or without
“exceptions” or “modifications” has
already been subject matter of the
decisions of the Supreme Court of India,
and he opines, it is ruled to be co-
extensive with the power to amend
Constitution and includes the power to
enlarge any existing provision or add new
provision. He says the only requirement is that it has to be done by the President with “concurrence” of the Government of
Jammu and Kashmir.
The major political parties of the Kashmir
Valley, NC and PDP have remained in
support to the preservation and
safeguarding of Article 370 and Article
35A.[26][16]"Mufti Mohammad Sayeed
government vows to protect article 370" .
Daily News & Analysis. 7 October 2015.
In defense of Article 35-A, the
Jammu and Kashmir state Government in November 2015, prepared a report which
read, "though Article 368 has been applied to State of Jammu and Kashmir, that
would not curtail power of President under Article 370 to amend any provision of Constitution of India in its application to Jammu and Kashmir”. It termed the PIL against the article as “legally
misconceived, untenable and
meritless”. In January 2017, the Chief Minister of Jammu and Kashmir, Mehbooba Mufti of PDP has commented that anybody raking up Article 370 & Article 35 A repeatedly, is
hurting the soul of Kashmir. Vowing to
oppose any such move, she said, “There
will be no bigger anti-national thing than
this because when you weaken this
uniqueness of Kashmir through judiciary,
then those forces in Kashmir Valley, who
want to put an end to the composite
culture in Kashmir Valley and want to have people from one community (Muslims) only, with one attire and one way of life, you will only make them successful.” Talking about BJP's opposition to the state's autonomy, she also said, “when the people of BJP talk of Article 370, they talk of technical integration. We have to make them understand that we also want that
Jammu and Kashmir should fully integrate with India emotionally, technically." She added that the integration which should
have been done "emotionally and
psychologically", was not done completely, which is needed, and for it, she said, Article 370 is not an impediment but a bridge which connects the state of Jammu and Kashmir and the rest of India. Previously in 2014, during a similar debate regarding autonomy of Jammu and
Kashmir and Article 370, Mehbooba Mufti
stated that fiddling with Article 370 could
lead to anarchy in “irresponsible utterances” should be stopped as they could have serious repercussions in Jammu and Kashmir, besides having the potential of spoiling the atmosphere of inclusiveness and peace which the Indian government aims at achieving.
Raghavan has stated that any attempt by
Delhi to tamper with the state's autonomy
"is bound to result in a massive
backlash".

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