Article 35A Cannot Be Challenged: Experts


‘Kashmir never acceded fully to India and therefore, it is a quasi-sovereign’

SRINAGAR — Article 35A cannot be challenged on the ground that it violates fundamental rights or the basic structure of the Constitution, senior lawyer Prashant Bhushan has said.

Article 35A, presently under challenge before Supreme Court of India, empowers the Jammu & Kashmir (J&K) legislative assembly to define who is classified as a permanent resident of J&K, and confer rights and privileges upon them, while excluding any person from all other states from such benefits

“Article 35A says that no law in J&K regarding restrictions imposed on employment under the State government, or acquisition of immoveable property, or settlement in the State, or scholarships and aid given by the State government shall be void on the ground that it is inconsistent with any fundamental rights in the Constitution,” Bhusan says.

Though the Article came in through a 1954 Presidential Order, he says, it was in furtherance of the Instrument of Accession which the J&K government had signed with the Indian government.

“The Instrument of Accession gave only limited rights to the Centre to interfere with the autonomy of J&K. That is why Article 370 was introduced, to recognise the special status of J&K. It said that the power of Parliament to make laws in J&K shall be limited to those matters in the Union List and the Concurrent List which, in consultation with the State government, are declared by the President to correspond to matters specified in the Instrument of Accession,” he says.

Land, rights over land, and settlement in the State are the main issues, he says. “Land is a State subject. Because of the limited accession of the State of J&K and the relatively greater autonomy given to the State, Article 35A is only a recognition of the conditional accession of J&K into India and the restrictions placed on both Parliament and the Constitution that the normal powers of Parliament to make laws will not apply to J&K.”

 It’s Article 370 that restricted the application of certain provisions of the Constitution to J&K, he says. “It is pursuant to Article 370 that Article 35A was inserted by way of the 1954 Presidential Order. All that it says is that the laws made by the state regarding settlement and acquisition of property will prevail and not be struck down on the ground that they violate fundamental rights.”

Incidentally, he says, Himachal Pradesh and Uttarakhand have laws which say that no outsider can buy land. “Strictly speaking, these laws are unconstitutional and violate two fundamental rights — the freedom to reside and settle in any part of the territory of India and the freedom to practise any profession, trade and business. Those laws are void,” he said, adding, “But because the accession of J&K was conditional to their being given their rights, their sovereignty with regard to matters concerning land and settlement are preserved. Therefore, it cannot be challenged on the ground that it violates fundamental rights or the basic structure of the Constitution because it is pursuant to an original part of the Constitution and pursuant to the limited accession signed with J&K.”

He says that Kashmir never acceded fully to India and “therefore, it is a quasi-sovereign State”. “It is not like any other State. Article 35A follows the Instrument of Accession and the guarantee given to the State of J&K that the State’s autonomy will not be disturbed even by the Constitution.” (With Inputs From Hindu)




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