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LUCID MAINS CURRENT AFFAIRS 2018

  1. ARTICLE 35 A

WHY TO FOCUS?

  • An NGO “We the Citizens “challenged Article 35 A in supreme court.
  • Argues that, it was not added to the constitution through amendment under Article 368 .
  • it was incorporated into the constitution by an order of the then president Rajendra prasad

On the advice of Jawahar Lal Nehru cabinet under 370 (1) (d) of the constitution.

  • Court held the validity of the Article 370 of the constitution in Sampath parakash case.
  • But still no idea about whether the president can introduce a new Article without the Parliaments knowledge.
  • Another case filed in supreme court by 2 kashmiri women arguing that the law disenfranchised their children as they married with non permanent resident .
  • Original provision was gender discriminatory as it disqualified women who are married to non-Permanent residents.
  • But Jammu and Kashmir high Court held that they will not loose their rights but they will not have succession right.
  • This issue need to be sorted out.
  • Supreme Court referred these petitions to 3 – judge bench and decided that the validity of Article 35 A and 370 will be decided by a constitution bench.

BACKGROUND

  • 1927 – Jammu and Kashmir, the only state with Muslim majority ruled by a Hindu king (Maharaja Hari Singh).
  • Jammu and Kashmir had border with both India and Pakistan.
  • 1947 – When Pakistan sponsored tribals attacked Jammu and Kashmir, Maharaja acceded Jammu and Kashmir to India.
  • After accession popular leader Sheikh Abdulla took over the reign from Maharaja.
  • 1949 – negotiation with New Delhi led to the inclusion of article 370 to the constitution
  • Article 370 – provides special status to Jammu and Kashmir and restricts union legislation over Defence, foreign affairs and communication.
  • 1952 – Delhi agreement between Abdullah and Nehru – several provisions extended to Jammu and Kashmir via presidential order thus inserted Article 35A.

WHAT IT IS ARTICLE 35A?

  • Empowers Jammu and Kashmir legislature to define peramanant residents of the state and provide special rights and priviilage to them.
  • Article 35 A prohibits non permanent residents of Jammu and Kashmir from settlement in the state and from acquiring immovable property ,government job ,scholarship and aids
  • Permanent Resident – is a person who was a state subject on 14 th may 1954 (according to Jammu and Kashmir constitution) or who has been a resident of the state for 10 years and has lawfully acquired immovable property in the State.
  • Jammu and Kashmir legislature can alter definition of Permanent Resident only through a law passed by 2/3rd
  • Denies property right to a women who marries a non permanent resident and her children.

ARGUMENTS IN FAVOR OF ARTICLE 35 A

  • Dilute autonomy given under Article 370 of the constitution
  • Breach UN Resolution
  • Status of Jammu and Kashmir is still an open question under international law.
  • UN Resolution planned for a plebiscite.
  • But as the conditions were not fulfilled by the countries, the decision is still pending in UN.
  • Will alter the demography of the state if repealed.
  • Affect the cultural identity of the people, especially of Dogra community.
  • Even after 70 years, demography remains more or less same mainly because of Article 35 A.
  • So any move to alter the autonomy by repealing the Article 35 A may back fire at India.
  • External Security issue
  • Pakistan may take advantage of the situation
  • Border with China and Pakistan become more vulnerable.
  • Internal secury issues.
  • Further the violence and agitation.
  • Increase militancy and separatist activities.
  • Opportunities will be decreased.
  • Both skilled and unskilled workers will be affected.
  • Increase competition from outside.
  • Intense pressure on land holding for settlement.
  • Cause environmental problems.
  • Youth will be deprived of their concession in the recruitment of security forces, education, and job.
  • Will have to face strong competition from outside the state.
  • In case of land buying issue, there are other states like Himachal Pradesh, Uttarakhand which also keeps the native of state provision in buying land.

ARGUMENTS AGAINST ARTICLE 35A

  • Gender discriminatory provisions.
  • Children of women who marries a non permanent resident will not have succession rights.
  • Violates fundamental rights of non permanent residents of the state.

VIOLATE ARTICLE 14, 19 AND 21 OF THE CONSTITUTION.

  • Could not protect the demographic identity of the people completely.
  • Failed to act against expulsion of Kashmiri pandits.
  • Boost the economy
  • because of open investment
  • Accelerate development.
  • Sections like valmiki community and other sections of SC/ST community are deprived of their benefits.
  • As they don’t fulfill the permanent resident criteria.
  • The definition can be altered by a law passed by state with 2/3rd
  • Can adress the sensitive issues like gender discrimination, SC/ST community etc
  • Against the “very spirit of oneness” of India.
  • Give more room for divisive politics.

Way forward

  • Initiative from the state and center to address the sensitive issues like gender discrimination, and consideration for backward community etc …instead of repealing Article 35A completely.
  • Focus on development of state by promoting investment.
  • Create more job opportunity for youth so that their energy won’t diverted to divisive politics and militant activities.
  • Integrate the people of state with rest of the country through programs like Ek Bharat Sresht Bharat .  So that they feel safe and homely in other part of the country.
  • Make them competent to face candidates from various parts of the country .