J&K: What Is Article 35A And What Is The Controversy Surrounding It?

Article 35A of the Constitution has been in the news intermittently since the Bharatiya Janata Party (BJP) promised to annul the provision in the party manifesto for 2019 Lok Sabha polls . 

The centre’s order of deployment of additional 100 companies of CAPFs in Jammu and Kashmir on 26 July has reportedly sparked panic in the Valley about the abrogation of Article 35A. 

There has been severe backlash from political parties in Kashmir , with former chief minister Mehbooba Mufti saying any tinkering with the state’s special status or identity would be akin to setting a powder keg on fire.

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People’s Conference chairman Sajjad Gani Lone, according to PTI, also said the rumours of tinkering with Article 35A were spreading fast and there is no reaction from the state or the Central governments.

What exactly is Article 35A?

Article 35A of the Constitution gives special rights to the residents of Jammu and Kashmir. The provision bars people from outside the state from acquiring any immovable property in the state. 

Article 35A was added to Article 370 by a 1954 Presidential order. 

It also gives the Jammu and Kashmir legislature power to decide who all are ‘permanent residents’ of the state and confer on them special rights and privileges, according to The Hindu .

It also denies property rights to a woman who marries a person from outside the state.

What are the arguments against it?

There are presently seven petitions pending in the Supreme Court against Article 35A, according to The Indian Express . One was filed by an NGO, We the Citizens, and argues that the provision is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”, according to Business Standard .

BJP has denounced the way the provision was included in the constitution. Senior BJP leader and former finance minister Arun Jaitley had said it was “surreptitiously” included by a presidential notification in the Constitution in 1954.

Article 35A, he said, was neither a part of the original Constitution framed by the Constituent Assembly, nor did it come as a Constitutional Amendment under Article 368 of the Constitution which requires an approval by two-third majority of both Houses of Parliament. 

What has the BJP said?

In its manifesto for the 2019 general election, BJP said it is committed to annulling Article 35A  as “the provision is discriminatory against non-permanent residents and women of Jammu and Kashmir”.

“We believe that Article 35A is an obstacle in the development of the state. We will take all steps to ensure a safe and peaceful environment for all residents of the state.”  

Prime Minister Narendra Modi , in an interview to CNN-News18 , also said, “The situation in Kashmir is such that people want change, whether it is about Article 35A or 370.” 

Union Minister Amit Shah has also said that the party will scrap Article 370 and 35A as soon as it gets majority in the Rajya Sabha. “Removing Article 35A has been in our manifesto since 1950, it is our commitment to the people of the country,” he said in conversation with News18’s Rahul Joshi  in March, when he was president of the BJP.

With a resounding majority in the Lok Sabha and Shah as the Home Minister, there has been speculation  that the BJP can now carry out some of its more controversial plans.

What has the opposition said?

Both the People’s Democratic Party (PDP) and National Conference have warned the Centre against scrapping Article 35A. Farooq Abdullah has said that both Article 35A and 370 were the foundation for Kashmir and should not be removed.

Mufti also warned the BJP not to “play with fire” when it comes to special status of Jammu and Kashmir. “If any hand tries to touch Article 35A, not only that hand, but that whole body will be burnt to ashes,” she said. 

(With PTI inputs)