Deciding on Art 35-A

Why in news?

The Supreme Court has recently adjourned the hearing on petitions relating to Article 35-A.

What is Art 35-A?

• Art 35-A empowers the Jammu and Kashmir Constitution to define “permanent residents” (PR) of the state.
• Only the J&K assembly can change the definition of PR through a law ratified by a two-thirds majority.
• It provides some special rights and guarantees to safeguard the unique identity of the people of J&K.
• It was brought in by a presidential order in 1954.

What is the case?

• The Supreme Court is hearing petitions challenging the validity of Art 35A.
• The legitimacy of the Instrument of Accession, by which J&K united with India, is in question.
• The validity of the negotiations which led to the adoption of Article 370 is also questioned.
• [Article 370 underscores J&K’s special legal status, and has actually given the Centre the power over that state.]
• The case has been adjourned as J&K administration and Centre cited local poll preparations.
• The Centre also said an interlocutor has been appointed and the talks are going on. Click here to know more.

What is the contention?

• Rights - From a purely individual rights or economic integration perspective, the case for 35A is not clear-cut.
• There is a contention that any restrictions differentiating residents and non-residents are inherently discriminatory.
• But this argument would not only invalidate 35A with respect to Kashmir alone.
• Several other states including Mizoram, Nagaland and Himachal would also be affected by it.
• Constitution - Art 370 is the only mechanism that allows the Indian Union to legally exercise power in Kashmir.
• Abrogating that mechanism is not just abrogating a specific policy.
• It would amount to repudiation of an important part of the legal structure which India’s claims rest upon.

What had the Court's stance been?

• As a matter of law, the status of Art 35-A had been considered by the Supreme Court in the past.
• The Court had observed that the Indian state needs to honour the terms and conditions in different instruments of accession.
• Accordingly, the SC had noted that essentially, the laws governing J&K are part of a political settlement.
• So it is up to the political process to modify the terms of the settlement, and not that of the judiciary.

How to deal with it?

• The challenge in leaving it to political process is that the application of this principle could be deeply politicised.
• So the Supreme Court can instead uphold the validity of 35A through its judgement.
• Nevertheless, it should also ensure to not completely leave it to the mercy of the J&K assembly when it comes to discrimination issues.

Source: Indian Express, The Hindu