Article 35A of The Constitution of India

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INTRODUCTION 

Article 35A is a unique provision of the Constitution of India. It is a part of the Constitution, but does not figure in the bare Act! One does not find Article 35A after Article 35 in the Constitution. Article 35 is followed by Article 36. But, 35A can be seen in Appendix i of the Constitution. It was conceived exclusively for the benefit of the State of Jammu and Kashmir through a Presidential Order issued in 1954. It empowers the Jammu and Kashmir State Legislature to define the State's 'permanent residents' and their special rights and privileges. It was specially devised to save the State subject laws that had already been defined under the Dogra ruler Maharaja Hari Singh's regime and notified in 1927 and 1932. However, this Article which came into force in 1954 without a place in the bare Act of the Constitution was unknown to the public. It came into limelight only when cases were filed in the apex court challenging its validity, thereby raising an intense debate.

TEXT OF THE ARTICLE: 

‘35A. Saving of laws with respect to permanent residents and their rights

Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and 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 of Jammu and Kashmir; or 

(b) conferring on such permanent residents any special rights and privileges, or imposing upon other persons any restrictions, as respects 

  1. Employment under the State Government; 
  2. Acquisition of immovable property in the State; 
  3. Settlement in the State; or 
  4. 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’. 

EFFECTS OF ARTICLE 35A:

A most prominent feature of the Constitution of Jammu & Kashmir, as distinguished from the rest of India, is the provision for the special treatment of 'permanent residents' of Jammu & Kashmir. 

The permanent residents are such persons as are declared so by any existing law of the State or by any future law enacted by the Legislature of the State. As stated in the Article, any such law may either confer special rights or privileges or impose restrictions upon the permanent residents with respect to employments under the State Government, acquisition of immovable property in the State, settlement in the State and the right to scholarships and other forms of aid as the State Government may provide. 

Such legislation shall be valid notwithstanding that it is inconsistent with the Fundamental Rights conferred by the Constitution of India upon the other citizens of India [e.g. by Articles. 15(1), 16(1), 19(1) (e)-(f) of Part III of the Constitution dealing with the fundamental rights]

WHY ARTICLE 35A IS BEING DEBATED:

 A Delhi based NGO, 'We the Citizens', challenged the validity of Article 35A in the Supreme Court in 2014 on the grounds that it was not added to the Constitution through an amendment under Article 368. It was never presented before Parliament, and came into effect immediately, the petitioner argued. A two judge Supreme Court Bench comprising the then Chief Justice J.S. Khehar and Justice D.Y. Chandrachud referred it to a three-judge bench after the Attorney General opined that it raised constitutional issues. The court accepted the plea of the State Government that the challenges to the Article be heard after Diwali.

RECENT DEVELOPMENTS:

On 5 August 2019, the Union Government revocated the special status granted to Jammu and Kashmir under the Article 370 through a Presidential Order, and made the entire Constitution of India applicable to the state. This implied that the Article 35A stood abolished. Further, the Union Parliament passed legislation reorganising the state into two union territories, one being Jammu and Kashmir, the other Ladakh.

Lok Sabha

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