Article 35A grants special rights and privileges to citizens of Jammu and Kashmir, was incorporated into the Indian Constitution in 1954 by an order issued by then-President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. It gives the J&K legislature complete discretion in determining who the state's "permanent residents" are. Through a Presidential Order issued on August 5, 2019, the Union Government revoked the special status accorded to Jammu and Kashmir under Article 370.

This article explains Article 35A is important for UPSC IAS exam preparation.

Who were ‘Permanent Residents’ as per Article 35A?

• A permanent resident, according to Article 35A, was anyone who was a state subject on 14 May 1954 or who had been a resident of the state for 10 years and had "lawfully acquired immovable property in the state."
• The Jammu and Kashmir state legislature had the authority to change the definition of a permanent resident, as well as the applicable privileges, through laws passed with a two-thirds majority.
• Furthermore, it clearly defined which benefits could not be granted to non-permanent residents.
  • Non-permanent residents are not permitted to own property in Jammu and Kashmir.
  • The same non-resident cannot obtain a state government job in Jammu and Kashmir.
  • A non-permanent resident is not permitted to enroll in any educational institution operated by the state of Jammu and Kashmir.

Historical Background

• Jammu and Kashmir was a princely state ruled by the British Empire. As a result, the people of Jammu and Kashmir were "state subjects" rather than British colonial subjects.
• At the turn of the twentieth century, political movements gave birth to the concept of "hereditary state subject" as a political identity for the people of Jammu and Kashmir.
• The people of the state demanded that only people of Kashmiri ethnicity be appointed to positions in the state government.
• Between 1912 and 1932, the Maharaja of Jammu and Kashmir enacted a set of legal provisions to recognize these special statuses in response to growing popular demand.
• The provisions granted state subjects the right to hold a government office, as well as the ownership and use of land.
• Non-state subjects were not granted the provisions.
• When Jammu and Kashmir joined the Union of India on October 26, 1947, Hari Singh, the Maharaja of Kashmir, ceded control of defence, foreign affairs, and communications to the Government of India.
• This relationship was formalized by Article 370 of the Indian Constitution and the Constitutional Order of 1950.
• Following the adoption of the Delhi Agreement by the Jammu and Kashmir Constituent Assembly, the President of India issued the Constitution Order of 1954, granting citizenship rights to state residents.
• It also added Article 35A to the Indian constitution, which gave the state legislature the authority to define who was a permanent resident and what rights they had.

Article 35A – Provisions

• Article 35A derives from Article 370, which was enacted through a Presidential Order in 1954.
• Article 35A is a one-of-a-kind provision in the Indian Constitution. It is a part of the Constitution, but it is not mentioned in the constitution.
  • Article 35A does not follow Article 35 in the Constitution. Article 36 comes after Article 35.
  • 35A, on the other hand, can be found in Appendix I of the Constitution.

Article 35A –  Significance

• It was designed specifically to save the State subject laws that had already been defined and notified under the Dogra ruler Maharaja Hari Singh's regime in 1927 and 1932.
• It gives the J&K legislature the authority to define the state's permanent residents as well as their special rights and privileges.
• To ensure these special rights and privileges, the Article states that no act of the state legislature covered by it can be challenged for violating the Constitution or other laws.

Article 35A –  Criticism

• The Supreme Court will consider whether it is unconstitutional or violates the Constitution's basic structure.
• However, unless it is upheld, many Presidential Orders may be called into question.
• Article 35A was inserted through a Presidential Order on the recommendation of J&K's Constituent Assembly, rather than through the amending process outlined in Article 368.
• SinceArticle 35A predates the 1973 basic structure theory, it cannot be tested onthe touchstone of basic structure.
• There are concerns over permanent residency for children of women who marry outsiders.
• It is argued that Article 35A was inserted into the Constitution through illegitimate means. The Article was never tabled in Parliament and was implemented through a presidential order.
• It controversially allows Jammu and Kashmir to pass laws that could be discriminatory and violate Article 14.
• Permanent resident status has a negative impact on private sector investment.

Related SC Judgements

State of Jammu & Kashmir v. Dr. Susheela Sawhney

The High Court of Jammu & Kashmir clarified in this matter if a woman enjoying permanent resident status marries a non-permanent resident, her status will be lost, nor will the child of such marriage be denied the rights of a permanent resident.

Bachan Lal Kalgotra vs state of Jammu and Kashmir and Ors

• In this case, refugees from West Pakistan who migrated to the state during partition in 1947 and had lived there for more than four decades were denied basic rights that other citizens of the country enjoyed, such as the right to employment, the right to acquire immovable property, the right to purchase vehicles, the right to higher technical education, and so on.
• So, while these rights were being denied to the people, the Jammu and Kashmir legislature enacted the Resettlement Act of 1982, which granted all rights to Jammu and Kashmir residents who voluntarily migrated during partition and whose children chose to return to the state.
• The petitioner in this case only asked that these people be granted the same rights as permanent residents of the state.
• All of these denials stemmed from the definition of the term "Permanent Resident."

SBI v Santosh Gupta

• The Supreme Court ruled that since the Jammu and Kashmir Constitution does not use the term "sovereign," the state has no sovereignty outside of the Indian Constitution and is thus subordinate to it.
• The people of Jammu and Kashmir are first and foremost Indian citizens, as stated in Section 6 of the Jammu and Kashmir Constitution, which refers to 'permanent residents' as Indian citizens.
• Section 10 of the Jammu and Kashmir Constitution guarantees the same rights to all permanent residents as the Indian Constitution, so an infringement of the right to equality on the basis of gender is not barred by Article 35A of the Constitution.

Current Status of Article 35A

• Through a Presidential Order issued on 5 August 2019, the Union Government revoked the special status granted to Jammu and Kashmir under Article 370, making the entire Indian Constitution applicable to the state.
• This means that Article 35A is no longer in effect.
• Furthermore, the Indian Parliament passed legislation dividing the state into two union territories, one of which was Jammu and Kashmir and the other Ladakh.

Conclusion

This Article, which entered into force in 1954 despite not being included in the Constitution's bare Act, was unknown to the general public. It only came to public attention after cases were filed in the Supreme Court challenging its constitutionality, sparking a heated debate.

FAQs

Question. What is Article 35A?

Question. What rights did Article 35A provide to permanent residents of Jammu and Kashmir?

Question. Why was Article 35A controversial?

Question. What happened to Article 35A?

Question. What was the impact of the revocation of Article 35A?

MCQs

1. When was Article 35A incorporated into the Indian Constitution?

A) 1954

B) 1950

C) 1975

D) 1980

2. Which of the following privileges was provided to permanent residents under Article 35A?

A) Right to vote in national elections

B) Ownership of property in Jammu and Kashmir

C) Free travel across India

D) Right to hold a passport

3. What was one of the criticisms of Article 35A?

A) It allowed non-residents to buy property in Jammu and Kashmir

B) It created discrimination based on gender

C) It provided unequal rights to Indian citizens from other states

D) It violated the basic structure of the Constitution

4. What action did the Indian government take regarding Article 35A in August 2019?

A) Strengthened its provisions

B) Revoked the special status granted by Article 35A

C) Extended its applicability to all states

D) Created new laws for property rights

5. What was the impact of the revocation of Article 35A on Jammu and Kashmir?

A) It provided more autonomy to the state

B) It allowed non-residents to purchase property and access government jobs

C) It limited the rights of the permanent residents

D) It created a new state within India

GS Mains Questions and Model Answers

Q1: Analyze the significance of Article 35A in the context of Jammu and Kashmir's political autonomy.

Answer: Article 35A was crucial in maintaining Jammu and Kashmir's political autonomy by allowing the state legislature to define "permanent residents" and grant them special privileges. It ensured that the state had control over critical aspects like land ownership, employment, and education. The provision helped maintain a distinct cultural and political identity for the people of Jammu and Kashmir. However, it was also seen as discriminatory against non-residents, leading to debates about its legality and fairness. Its abrogation in 2019 marked a significant shift in the region’s relationship with the rest of India, as it led to the extension of Indian laws, including property rights, to all citizens.

Q2: Evaluate the constitutional challenges faced by Article 35A and its eventual abrogation.

Answer: Article 35A faced significant constitutional challenges, especially regarding its origin. It was introduced through a Presidential Order rather than a formal amendment under Article 368 of the Constitution, which raised questions about its constitutional validity. Critics argued that it violated fundamental rights, particularly Article 14, which guarantees equality before the law. The Supreme Court also received petitions questioning its legitimacy. Despite these challenges, the provision remained in effect until its abrogation in 2019, when the government took a decisive step to integrate Jammu and Kashmir more fully into the Indian Union by revoking the special status and removing the provisions of Article 35A.

Q3: Discuss the implications of the revocation of Article 35A on Jammu and Kashmir’s socio-economic fabric.

Answer: The revocation of Article 35A had significant socio-economic implications for Jammu and Kashmir. It opened up the region to non-residents, allowing them to purchase property and apply for government jobs. This move was aimed at promoting investment, economic growth, and integration with the rest of India. However, it also raised concerns among the local population about the erosion of their cultural identity and the potential for demographic changes. While proponents argued that it would lead to greater economic development and opportunities, critics feared it could disrupt the social fabric and lead to increased tensions within the region. The long-term impact of this change on Jammu and Kashmir’s socio-economic structure remains a subject of debate.

Previous Year Questions on  Article 35A

1. UPSC CSE 2018

Question: "Examine the implications of Article 35A on the constitutional framework of India."

Answer: Article 35A, by granting special privileges to the residents of Jammu and Kashmir, created a unique constitutional provision that allowed the state to maintain its autonomy in certain matters. However, it also led to constitutional challenges regarding equality and the process of its incorporation into the Constitution. The abrogation of Article 35A in 2019 has had profound implications, as it marked the end of the special status and brought Jammu and Kashmir under the same legal framework as the rest of India.

2. UPSC CSE 2020

Question: "Critically analyze the role of Article 35A in maintaining the unique status of Jammu and Kashmir."

Answer: Article 35A played a key role in maintaining Jammu and Kashmir's unique status within the Indian Union. It granted special privileges to permanent residents and allowed the state legislature to define the criteria for these privileges. This article was seen as an expression of the state's autonomy and cultural identity. However, its implementation also led to debates about discrimination against non-residents and its constitutional validity. The eventual abrogation of Article 35A removed these special provisions, leading to a shift in the region's governance and legal status.