Centre not to file counter-affidavit on Article 35A

The Centre has decided not to file any “counter-affidavit” on Article 35A, which has been challenged in the Supreme Court through a Public Interest Litigation (PIL) petition.

Article 35A allows the Jammu and Kashmir legislature to decide the “permanent residents” of the State, prohibits a non-State resident from buying property in the State and ensures reservation in employment for residents.

Article 35A is a provision in the Constitution that empowers the Jammu and Kashmir legislature to define permanent residents of the state. It was added through the Constitution (Application to Jammu and Kashmir) Order, 1954, issued under Article 370.

Article 35A empowers Jammu and Kashmir legislature to define “permanent residents” of the state along with their special rights and privileges. This Article has an intricate relationship with Article 370.

Jammu and Kashmir Assembly defined Permanent Resident as a person who was a state subject on May 14, 1954 or who had been a resident of the state for 10 years and has “lawfully acquired immovable property in the state.”

A person who is not a permanent resident of Jammu and Kashmir is not allowed to buy or own properties in the state or vote in state Assembly election or contest election to the state Assembly. An outsider cannot get a job in the Jammu and Kashmir government.

The petition says Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.

Also, the parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution. Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution.

Attempts to undo Article 35A of the Indian Constitution would strike a fatal blow to the nationalists in the state. Kashmiris are apprehensive that such a move would open the sluice gates for a demographic transformation of the Valley. The J&K government is also concerned at the reluctance of the Union government to file a counter affidavit in the Supreme Court. Against the backdrop of the escalating protests in Kashmir, this issue could potentially be explosive.

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