Jonah Patel
Article 35A is a highly contested law in the Indian Constitution, which grants the Jammu and Kashmir legislature the power to define permanent residents of the state. It was introduced in 1954 by President Rajendra Prasad, under Article 370, which grants special status to Jammu and Kashmir. Article 35A has been a source of controversy, with critics arguing that it goes against the spirit of oneness and equality of Indian citizenship, while supporters claim it is necessary to protect the state's distinct demographic character. The law has faced numerous legal challenges, with petitions filed to the Supreme Court demanding its repeal.
| Characteristics | Values |
|---|---|
| Year of inclusion in the Indian Constitution | 1954 |
| Presidential Order | Issued by President Rajendra Prasad |
| Article under which the order was issued | Article 370 |
| Nature of the order | Temporary provision |
| Purpose | To provide a framework for negotiations between the Indian government and the leadership of Jammu and Kashmir to determine the state's final political status |
| Extension of Indian citizenship | To Jammu and Kashmir's state subjects |
| Powers granted to the state legislature | To define "permanent residents" and grant them exclusive rights and privileges |
| Rights and privileges | Property ownership, jobs in the public and private sector, scholarships, financial aid, and other government grants and benefits |
| Discriminatory provisions | Section 51, Section 127, and Section 140 |
| Status | Revoked in 2019 |
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What You'll Learn
Article 35A's role in defining 'permanent residents'
Article 35A of the Indian Constitution was introduced in 1954 through a Presidential Order by President Rajendra Prasad. The article was added to the constitution under Article 370, which gave special status to Jammu and Kashmir within India.
Article 35A gave the Jammu and Kashmir legislature the power to define "permanent residents" and grant them exclusive rights and privileges. These permanent residents were defined as those who were state subjects on 14 May 1954, or who had been residents of the state for 10 years and had lawfully acquired immovable property. This clause meant that no outsider could own property in Jammu and Kashmir or get a state job.
The article also prevented non-permanent residents from permanently settling in the state, acquiring land, applying for government jobs, scholarships, or other public welfare projects. It also had implications for the property rights of women, who could lose their permanent resident status by marrying someone from outside the state.
The article was controversial and seen as discriminatory, with legal challenges questioning its legality and arguing that it restricted the fundamental rights of citizens from other Indian states. In 2019, the Indian government announced the repeal of Article 35A, bringing uniform laws to the region and ending its special status.
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The extension of Indian citizenship to Jammu and Kashmir
In 1952, the Delhi Agreement was signed between Jawaharlal Nehru, the Prime Minister of India, and Sheikh Abdullah, the then Prime Minister of Jammu and Kashmir. This agreement dealt with the extension of Indian citizenship to the "state subjects" of Jammu and Kashmir. To implement this agreement, President Rajendra Prasad issued The Constitution (Application to Jammu and Kashmir) Order, 1954, which extended Indian citizenship to the residents of the state. This order was enacted under Article 370, which gave special status to Jammu and Kashmir and allowed the state to decree exceptions to any extension of the Indian Constitution, except in ceded subjects.
As a result of this order, Article 35A was inserted into the Indian Constitution, enabling the state legislature of Jammu and Kashmir to define the privileges and rights of its permanent residents. This article granted the state legislature the power to decide who qualified as a permanent resident and conferred exclusive rights on these residents in matters such as property ownership, government jobs, scholarships, and other benefits. It also prohibited non-residents from buying property or working in government jobs in the state, creating legal and economic barriers.
The inclusion of Article 35A in the Indian Constitution was controversial and faced legal challenges. Some argued that it treated Jammu and Kashmir differently from other states in India and restricted the fundamental rights of citizens from other states regarding employment and property ownership. There were also concerns about the process by which it was added to the Constitution, as it was inserted through a Presidential Order without being passed by Parliament, raising questions about its legality.
In 2019, the Indian government announced the repeal of Article 370 and Article 35A, bringing uniform laws to the region and ending its special status. This move was a major constitutional modification, bringing the state at par with the rest of India in terms of the application of Indian laws and citizenship rights. However, it also sparked debates and concerns about the potential impact on the socio-political landscape of Jammu and Kashmir, with fears of unrest and security issues in the region.
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The controversial nature of Article 35A
Article 35A of the Indian Constitution has been a subject of controversy and public debate ever since it was challenged in the Supreme Court in 2014. The article, inserted in 1954 through a presidential order, empowers the Jammu and Kashmir legislature to define the state's "permanent residents" and their special rights and privileges.
The controversy surrounding Article 35A stems from its discriminatory nature, which has been criticised for imposing hardships on immigrant workers, refugees from West Pakistan, and the state's own female residents. The law prohibits non-permanent residents from settling permanently in the state, acquiring immovable property, government jobs, scholarships, and aid. It also disqualifies women from their state subject rights if they marry non-permanent residents.
The article was challenged in the Supreme Court by a Delhi-based NGO, "We the Citizens", which argued that the state's autonomous status granted by Article 35A and Article 370 discriminates against fellow citizens from the rest of the country. The NGO further contended that Article 35A should be held “unconstitutional” as it was not added to the Constitution through a parliamentary amendment and was only supposed to be a temporary provision.
In response to the challenge, the Jammu and Kashmir government argued that the President had the power to incorporate a new provision in the Constitution by way of an order. The court accepted that the President has the power to modify existing provisions in the Constitution but did not comment on whether the President could introduce a new article without Parliament's knowledge.
On August 5, 2019, the President of India, Ram Nath Kovind, issued a new Presidential Order, making all provisions of the Indian Constitution applicable to the state without any special provisions. This implied the abolition of Article 35A and the separate Constitution of Jammu and Kashmir, including the privileges it granted.
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The legality of Article 35A
Article 35A empowered the Jammu and Kashmir state's legislature to define "permanent residents" of the state and provide them with special rights and privileges not available to Indian citizens in general. These privileges included the right to own land and other tangible property, the right to vote and run for office, the right to seek government employment, and the right to avail themselves of other state services like higher education and healthcare.
Additionally, the designation of people as permanent residents or non-permanent residents under Article 35A has been seen as a violation of Article 14 of the Constitution, which guarantees the right to equality before the law. According to Article 14, any citizen of India, whether a permanent or temporary resident of Jammu and Kashmir, should have the same benefits and rights as everyone else.
On August 5, 2019, the special status granted to Jammu and Kashmir under Article 370 was revoked by the Union Government through a Presidential Order, making the entire Indian Constitution applicable to the state. This implied that Article 35A was also abolished, and the state was reorganised into two union territories: Jammu and Kashmir and Ladakh.
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The consequences of repealing Article 35A
Article 35A of the Indian Constitution has been a source of contention between the Muslim-majority valley of Kashmir and the right-wing Hindu BJP party that governs India. The article, added in 1954, empowered the Jammu and Kashmir state's legislature to define "permanent residents" of the state and provide them with special rights and privileges, such as the right to own property, access to government jobs, and scholarships. These privileges were not available to Indian citizens in general and were seen by critics as discriminatory and against the spirit of oneness and equality of Indian citizenship.
Secondly, the repeal of Article 35A will impact the rights of women in the state. Under the now-defunct separate constitution of Jammu and Kashmir, women who married out of state lost their permanent resident status and the associated privileges, including the right to own property. Their children were also ineligible to claim permanent resident status. With Article 35A repealed, these women and their children may now be entitled to the same rights and privileges as male permanent residents.
Thirdly, the repeal of the article is likely to have a significant impact on the relationship between the Indian government and the people of Kashmir. Protests, shutdowns, and violent clashes between civilians and Indian security forces are common in Srinagar, the capital of Indian-administered Kashmir. The repeal of Article 35A is likely to further strain this relationship and could trigger an explosive situation in the region.
Finally, the repeal of Article 35A has rendered Article 370 'inoperative', which was the constitutional provision that granted special status to Jammu and Kashmir. This means that the separate Constitution of Jammu and Kashmir no longer applies, and a single constitution now applies to all Indian states. This has significant implications for the autonomy and self-governance previously enjoyed by the state.
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Frequently asked questions
Article 35A was a provision in the Indian Constitution that empowered the Jammu and Kashmir state legislature to define "permanent residents" and grant them exclusive rights and privileges.
Permanent residents were granted special rights regarding land ownership, jobs, scholarships, and government grants and benefits.
Non-permanent residents were prohibited from permanently settling in the state, buying immovable property, acquiring land, applying for government jobs, or accessing scholarships and other public welfare projects.
Article 35A was controversial because it treated Jammu and Kashmir differently from other states in India, creating legal and economic barriers. It was also criticised for its discriminatory nature, including the hardships imposed on immigrant workers, refugees, and female residents who lost their permanent resident status by marrying out of state.
Yes, in 2019, the Indian government repealed Article 35A along with Article 370, bringing uniform laws to the region and ending the special status of Jammu and Kashmir.
