Article 35A of the Indian Constitution

Article 35A was a unique provision in the Indian Constitution that provided special rights and privileges to the residents of Jammu and Kashmir. This

Article 35A of the Indian Constitution

Article 35A was a unique provision in the Indian Constitution that provided special rights and privileges to the residents of Jammu and Kashmir. This article was introduced in 1954 through a Presidential Order and was an extension of Article 370, which granted special autonomy to the state. It played a crucial role in defining who qualified as a “permanent resident” of Jammu and Kashmir and what rights they enjoyed.

Key Features of Article 35A

Article 35A, introduced through a Presidential Order in 1954, was a distinctive provision granting special rights and privileges to the permanent residents of Jammu and Kashmir. Below are the key features of this article:

1. Definition of Permanent Residents

• The Jammu and Kashmir legislature was given exclusive powers to define “permanent residents” of the state.
• Criteria for permanent residency included:
  • Being a state subject on May 14, 1954.
  • Lawful ownership of immovable property in the state prior to this date.
  • Residing in Jammu and Kashmir for at least 10 years.

2. Exclusive Rights for Permanent Residents

Permanent residents enjoyed exclusive rights and privileges, such as:

• Property Ownership:
  Only permanent residents could purchase or own land and immovable property in the state.

• Government Jobs:
  Employment opportunities in state government were reserved exclusively for permanent residents.

• Educational Benefits:
  Permanent residents were eligible for state-sponsored scholarships and welfare programs.

• Political Rights:
  Only permanent residents could participate in local elections, including the Legislative Assembly elections.

3. Restrictions on Non-Residents

• Non-permanent residents of Jammu and Kashmir, even if they were Indian citizens, could not:
  • Purchase land or immovable property in the state.
  • Secure government jobs within Jammu and Kashmir.
  • Access welfare schemes or education benefits offered by the state government.

4. Judicial Immunity

• Laws made by the Jammu and Kashmir legislature concerning the rights of permanent residents were:
  • Protected from being challenged on grounds of violation of fundamental rights.
  • Immune from judicial review by Indian courts, ensuring complete autonomy in these matters.

5. Impact on Women’s Rights

• Women who married non-permanent residents lost their permanent resident status and, consequently, their property rights and privileges.
• The children of such women were also denied the status of permanent residents.
• This discriminatory aspect was partially overturned by the Jammu and Kashmir High Court in 2002, but ambiguities persisted.

6. Non-Recognition of Refugees

• Communities such as West Pakistani refugees, who had migrated to Jammu and Kashmir during Partition, were denied permanent resident status despite living in the state for decades.
• As a result, these communities were excluded from owning property, accessing government jobs, or availing social benefits.

7. Link to Article 370

• Article 35A was an extension of Article 370 and was inserted without parliamentary approval.
• It reinforced the special autonomy granted to Jammu and Kashmir, further isolating the state from the constitutional framework of India.

The key features of Article 35A highlighted the autonomy enjoyed by Jammu and Kashmir before its abrogation. While it aimed to safeguard the identity and rights of its permanent residents, it faced widespread criticism for fostering discrimination and inequality, particularly against women and marginalized communities. The abrogation of Article 35A in 2019 aimed to bring parity and uniformity in the application of laws across India, including Jammu and Kashmir.

---

Historical Background of Article 35A

Article 35A was a distinctive provision in the Indian Constitution, granting special privileges to the residents of Jammu and Kashmir. It originated as part of the unique constitutional arrangement between Jammu and Kashmir and the rest of India. Here is the detailed historical background of Article 35A:

1. Accession of Jammu and Kashmir to India (1947)

• Pre-Independence Context: Jammu and Kashmir, a princely state under Maharaja Hari Singh, was given the choice to join India, Pakistan, or remain independent after the British left in 1947.
• Instrument of Accession: On October 26, 1947, Maharaja Hari Singh signed the Instrument of Accession to join India after facing an invasion from Pakistan-backed tribal forces.
  • The accession was limited to matters of defense, foreign affairs, and communication.

---

2. Special Status through Article 370 (1949)

• To formalize the special relationship, Article 370 was drafted, granting Jammu and Kashmir significant autonomy.
• It allowed the state to have its own Constitution and limited the application of the Indian Constitution to the state.
• The Indian Parliament required the concurrence of the Jammu and Kashmir government to apply national laws to the state.

---

3. Introduction of Article 35A (1954)

• Presidential Order: On May 14, 1954, President Rajendra Prasad issued the Constitution (Application to Jammu and Kashmir) Order, 1954, based on Article 370(1)(d).
  • This order inserted Article 35A into the Indian Constitution without parliamentary approval.
• Reason for Its Introduction:
  • To protect the identity and resources of Jammu and Kashmir from external influences.
  • To give the state legislature the power to define permanent residents and their rights.

---

4. Sheikh Abdullah’s Role

• Sheikh Abdullah, the Prime Minister of Jammu and Kashmir at the time, strongly advocated for special provisions to protect the demographic and cultural identity of the state.
• Article 35A was seen as a fulfillment of promises made to the Kashmiri leadership during the state's accession to India.

---

5. Key Provisions Introduced by Article 35A

• Jammu and Kashmir's legislature was given the authority to define permanent residents.
• Special privileges were granted to permanent residents regarding land ownership, employment, education, and social welfare.
• The provisions were intended to prevent the exploitation of the state’s resources by non-residents.

---

6. Controversies Surrounding Its Origin

• Bypassing Parliament: Article 35A was introduced via a Presidential Order, bypassing the standard parliamentary procedure, raising questions about its constitutional legitimacy.
• Secrecy: The manner in which Article 35A was added to the Constitution without widespread public debate or awareness also contributed to its contentious nature.

---

Implications of Article 35A

The inclusion of Article 35A had far-reaching effects on the socio-political and economic fabric of Jammu and Kashmir:

• It reinforced the special status of the state as outlined in Article 370.
• It contributed to the sense of separateness, as the state had laws different from the rest of India.
• Critics argued that it perpetuated inequality and hindered national integration, while supporters saw it as essential for preserving the identity of Jammu and Kashmir.

Article 35A was deeply rooted in the historical context of Jammu and Kashmir’s accession to India and the promises made to the state’s leadership. While it aimed to protect the unique identity of the region, it also became a source of legal, political, and social debate. Its eventual abrogation in 2019 marked the end of this special provision, reshaping the relationship between Jammu and Kashmir and the rest of India.

Abrogation of Article 35A

The abrogation of Article 35A on August 5, 2019, was a landmark event in Indian history, redefining the relationship between Jammu and Kashmir (J&K) and the Union of India. This move, coupled with the revocation of Article 370, marked the end of J&K’s special constitutional status and integrated the state fully into India’s legal and political framework.

1. What Led to the Abrogation of Article 35A?

a. Integration Challenges

• Article 35A, along with Article 370, created a sense of separateness between J&K and the rest of India.
• These provisions were seen as barriers to economic development, social justice, and political integration.

b. Discriminatory Aspects

• Gender Discrimination:
  • Women from J&K lost their permanent resident status if they married non-residents, though the children of such unions were also denied residency rights.
  • This discrimination was partially corrected by the J&K High Court in 2002 but remained a contentious issue.
• Exclusion of Refugees:
  • West Pakistani refugees and other long-term residents were denied permanent residency and access to state welfare schemes.

c. Economic and Social Isolation

• Restrictions on land ownership and investment by non-residents discouraged private sector growth, limiting economic opportunities in the state.

d. Political Intent

• The BJP government had consistently advocated for the abrogation of Article 35A as part of its larger vision of "One Nation, One Constitution."

---

2. The Abrogation Process

a. Presidential Order (Constitution Order 272)

On August 5, 2019, President Ram Nath Kovind issued Constitution (Application to Jammu and Kashmir) Order, 2019, under Article 370(1).

• This order superseded the 1954 Presidential Order, which had introduced Article 35A.
• It applied all provisions of the Indian Constitution uniformly to Jammu and Kashmir.

b. Reorganization of Jammu and Kashmir

The Government of India introduced the Jammu and Kashmir Reorganization Bill, 2019, in Parliament.

• Key Changes:
  • Jammu and Kashmir was reorganized into two Union Territories:
    • Jammu and Kashmir (with a legislative assembly).
    • Ladakh (without a legislative assembly).

c. Parliamentary Approval

The abrogation and reorganization were passed with overwhelming support in both Houses of Parliament.

• Rajya Sabha: Passed with 125 votes in favor and 61 against.
• Lok Sabha: Passed with 370 votes in favor and 70 against.

---

3. Key Implications of the Abrogation

a. Removal of Special Privileges

• Residents of J&K lost the exclusive rights to property ownership, government jobs, and scholarships.
• All Indian citizens could now buy land, settle, and work in Jammu and Kashmir.

b. Uniform Application of Laws

• Over 130 central laws, previously not applicable in J&K, were extended to the region.
  • Examples include Right to Information (RTI), Reservations for Economically Weaker Sections, and Panchayati Raj Act.

c. Gender Equality

• Women of J&K gained equal rights, regardless of whom they married.
• Their children were also granted full permanent residency rights.

d. Political and Economic Impact

• Greater integration with the rest of India opened up opportunities for investment and development.
• New industrial policies aimed to boost employment and infrastructure.

e. Shift in Security Dynamics

• The abrogation aimed to curb separatism and militancy by addressing the root causes of alienation.
• However, heightened security measures, including internet shutdowns and detentions, were implemented to maintain law and order.

---

4. Reactions to the Abrogation

a. Support

• Many viewed the move as a step toward national integration and equal rights for all citizens.
• Proponents argued that it would pave the way for development and end decades of discrimination.

b. Opposition

• Political leaders in J&K, including those from the National Conference (NC) and People’s Democratic Party (PDP), criticized the move as unconstitutional.
• Concerns were raised about potential demographic changes and the erosion of cultural identity.

c. International Response

• Pakistan strongly opposed the abrogation and downgraded diplomatic ties with India.
• Other countries, including the United States and the United Nations, called for restraint and peaceful resolution.

---

5. Legal Challenges

• Several petitions were filed in the Supreme Court of India challenging the legality of the abrogation.
• Key arguments included:
  • Whether the Presidential Order was valid without the concurrence of the J&K Constituent Assembly (which ceased to exist in 1957).
  • Whether Parliament could legislate on J&K’s reorganization.

---

6. Current Status

• As of today, Jammu and Kashmir operates as a Union Territory, with laws of India uniformly applicable.
• Significant efforts are being made to boost economic development, improve infrastructure, and ensure peace in the region.

The abrogation of Article 35A marked a paradigm shift in India's constitutional and political landscape. While it sought to promote equality, integration, and development, the move also faced criticism for its abrupt implementation and impact on local sentiments. The long-term success of this decision will depend on how effectively the government addresses the socio-economic challenges in Jammu and Kashmir and fosters peace and harmony in the region.

---

Conclusion

Article 35A symbolized the unique constitutional arrangement that existed between Jammu and Kashmir and the rest of India. While its provisions aimed to protect the identity and rights of the local population, it also faced criticism for fostering inequality and impeding the region’s integration with the country. Its abrogation in 2019 marked a historic turning point, reshaping the political, social, and legal landscape of Jammu and Kashmir.