Article 35A was a provision that accorded special rights and privileges to the permanent residents of Jammu and Kashmir. It was not originally part of the Constitution of India but was added to the Constitution through a Presidential Order in 1954, issued under the authority of Article 370, which granted special autonomous status to the state of Jammu and Kashmir.
This article empowered the Jammu and Kashmir state legislature to define who the permanent residents of the state were and to confer upon them special rights regarding state government employment, acquisition of immovable property in the state, settlement in the state, and the right to scholarships and other forms of aid provided by the state government. These special provisions were designed to protect the demographic character of the state and were linked to the historical ‘State Subject’ laws of the Dogra rule era.
Original Text
Article 35A was not part of the original numbered articles of the Constitution as enacted in 1950. It was added to the Constitution in its application to Jammu and Kashmir by The Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the President under Article 370(1)(d). The text effectively inserted into the Constitution, specifically in relation to J&K, read as follows:
“35A. Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,— (a) defining the classes of persons who are, or shall be, permanent residents of the State; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects— (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”
Note: “this Part” here refers to Part III of the Constitution (Fundamental Rights).
Detailed Explanation
Article 35A was a unique provision in the Indian Constitution, exclusively applicable to the state of Jammu and Kashmir. Its insertion was a consequence of the special status granted to J&K under Article 370, which allowed the application of the Indian Constitution to the state with modifications.
The key function of Article 35A was to grant the J&K state legislature the power to define who constituted a “permanent resident” of the state. This definition was crucial as it determined who could enjoy certain exclusive rights and privileges within J&K.
These special rights included:
- State Government Employment: Permanent residents had exclusive access to jobs under the state government.
- Immovable Property: Only permanent residents could acquire or own immovable property within the state.
- Settlement: Non-permanent residents were restricted from settling permanently in the state.
- Scholarships and Aid: Permanent residents were exclusively eligible for state government scholarships and other welfare aid schemes.
A significant aspect of Article 35A was the protection it offered to the laws made by the J&K legislature concerning permanent residents. It explicitly stated that such laws could not be challenged or deemed void on the grounds that they violated the fundamental rights (under Part III) or any other rights of citizens from other parts of India. This provided a shield against judicial review based on inconsistency with universal fundamental rights like equality, freedom of movement, and freedom to practice any profession, trade, or business.
The provision was rooted in the pre-1947 ‘State Subject’ laws enacted by the Dogra ruler of Jammu and Kashmir, Maharaja Hari Singh. These laws were originally designed to protect the local population from being dispossessed of their land and resources by outsiders. Article 35A essentially carried forward this concept of distinguishing between state subjects/permanent residents and other Indian citizens within the territory of J&K.
Article 35A faced considerable legal and political debate. Its validity was questioned primarily on the ground that it was added by a Presidential Order rather than a constitutional amendment under Article 368. Critics also argued that it discriminated against Indian citizens who were not permanent residents of J&K by denying them fundamental rights available elsewhere in the country.
The operation of Article 35A came to an end on August 5, 2019, when the President of India issued The Constitution (Application to Jammu and Kashmir) Order, 2019. This order superseded the 1954 Order and made all provisions of the Constitution of India applicable to Jammu and Kashmir, effectively rendering Article 370 inoperative and, by extension, nullifying Article 35A.
Detailed Notes
- Origin: Added to the Constitution in its application to Jammu and Kashmir by The Constitution (Application to Jammu and Kashmir) Order, 1954.
- Issued Under: Authority of Article 370(1)(d) of the Constitution, which allowed the President to apply provisions of the Indian Constitution to J&K with modifications and exceptions.
- Not an Original Part: Was not part of the original text of the Indian Constitution enacted in 1950; it was inserted subsequently.
- Empowered J&K Legislature: Granted the power to the Jammu and Kashmir state legislature to define who were ‘permanent residents’ of the state.
- Special Rights Conferred: Allowed the J&K legislature to grant special rights and privileges exclusively to these permanent residents.
- Areas of Special Rights: Included employment under the state government, acquisition of immovable property in the state, settlement within the state, and rights to scholarships and state aid.
- Protection Clause: Laws enacted by the J&K legislature under Article 35A were immune from challenge on the grounds that they violated the Fundamental Rights (Part III) or other provisions of the Constitution applicable to other Indian citizens.
- Historical Context: Linked to the pre-1947 ‘State Subject’ laws of the princely state of Jammu and Kashmir.
- Purpose: Primarily aimed at protecting the demographic composition and cultural identity of J&K.
- Controversy:
- Questioned legality: Added via Presidential Order under Article 370, not through a constitutional amendment under Article 368, which was argued by some to be unconstitutional.
- Discriminatory nature: Denied fundamental rights (like property ownership, employment, settlement) to Indian citizens who were not permanent residents of J&K.
- Abrogation: Ceased to operate following The Constitution (Application to Jammu and Kashmir) Order, 2019, which superseded the 1954 Order.
- Effective Date of Abrogation: August 5, 2019.
- Current Status: Inoperative/effectively repealed as a result of the actions on August 5, 2019, which also read down Article 370.
Additional Comments
- Article 35A was not listed as a separate numbered article in the main list of articles of the Constitution but was often appended or mentioned in the context of Article 370 and the special provisions for Jammu and Kashmir.
- Several petitions challenging the constitutional validity of Article 35A were filed in the Supreme Court of India before its abrogation.
- The definition of ‘permanent resident’ was laid down by the Constitution of Jammu and Kashmir (adopted in 1956) and subsequent state laws, broadly defining them as persons who were state subjects on May 14, 1954, or who had resided in the state for ten years and lawfully acquired immovable property there.
- The abrogation of Article 35A was part of a larger constitutional change involving the reading down of Article 370 and the reorganization of the state of Jammu and Kashmir into two Union Territories (Jammu and Kashmir, and Ladakh).
Summary
Article 35A, added to the Constitution in relation to Jammu and Kashmir via a 1954 Presidential Order under Article 370, empowered the J&K legislature to define ‘permanent residents’ and grant them exclusive special rights in state employment, property ownership, settlement, and state aid. Laws enacting these rights were protected from challenge based on inconsistency with the fundamental rights of other Indian citizens. Rooted in pre-1947 state subject laws, it aimed to preserve J&K’s demographic identity but faced legal and political challenges regarding its method of insertion and discriminatory nature. The provision became inoperative following a Presidential Order on August 5, 2019, which effectively abrogated Article 370 and made the full Constitution applicable to J&K.