Article 35A of the Constitution is now being vigorously contested with its constitutional validity being challenged. Do you think it should be scrapped? Comment. (200 words)
Refer – The Hindu
Enrich the answer from other sources, if the question demands.
Tapasvi 6 years
Kindly review
IAS Parliament 6 years
Justify your view with more points. Try to explain clearly. Keep writing.
IAS Parliament 6 years
KEY POINTS
Arguments in favour of 35A
· A: 35A is a recognition of the conditional accession of J&K into India. Scrapping such recognition would render J&K’s accession with Union of India “shaky”.
· Also, 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.
· A: 370 empowers the President of India to extend with requisite exceptions and modifications the other provisions of the Indian Constitution to J&K as may be necessary.
· It is pursuant to A: 370 that A: 35A was inserted by way of the 1954 Presidential order.
· Scrapping of special laws would also close the last opening for reconciliation in Kashmir.
Arguments against 35A
· Constitutional validity – It was added to the Constitution without undergoing the procedure for constitutional amendments as laid down in Article 368.
· The Presidential Order was issued in exercise of the power conferred under Article 370 (1) (d) of the Constitution.
· Whether such power also extends to inserting a new Article in the Constitution is contentious.
· Equality – It treats non-permanent residents of J&K as ‘second-class’ citizens.
· Such persons are not eligible for employment under the State government and are also debarred from contesting elections.
· Scholarships, forms of aid etc are also not allowed to non-residents.
· Gender neutrality – The major sufferers of this provision are women who marry outside J&K.
· Though they retain their Permanent Resident Certificate, their children cannot be permanent residents. This restricts their basic right of inheritance.
