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Posted by amritaias on June 1st, 2020


Context:
The Supreme Court is hearing petitions challenging the validity of Art 35A.

Art 35A empowers J&K to define a class of persons as constituting “permanent residents” of the State, who


  • are eligible to vote
  • can work for the state government
  • can own land, buy property
  • can secure public employment and college admissions, etc.



The article allows the government to confer on these persons, special rights and privileges. These relate to matters of


  • public employment
  • acquisition of immovable property in the State
  • settlement in different parts of the State
  • access to scholarships
  • other such aids that the State government might provide



It exempts such legislation from being annulled on the ground that they infringe on any of the fundamental rights.

Non-permanent residents are denied all these rights.

Issues with the Article:

  1. Some interpret the Article as discriminatory against J & K women, because it disqualifies them from their state subject rights if they married non-permanent residents. But in landmark judgement in Oct 2002, J & K High Court held that the women married to non-permanent residents will not lose their rights. The children of such women however don’t have succession rights.
  2. An NGO, We the Citizens, challenged 35A in SC on the grounds that it was not dded to the Constitution through an amendment under Art 368. It was never presented before parliament, and came into effect immediately.
  3. Also, last year, two Kashmiri women argued that the state law’s, flowing from 35A, had disenfranchised their children. A petition was filed questioning the same and to consider immunity granted under Article 35A to J&K‟s laws as discriminatory. It thus calls for declaring Art 35A unconstitutional.
  4. A three-judge Bench of the court intends to consider if Article 35A infringes the Constitution‟s basic structure.
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