What is Article 35A?
It is a constitutional provision that allows the Jammu-Kashmir assembly to define permanent residents of the state. According to the Jammu-Kashmir constitution, a Permanent Resident is defined as a person who was a state subject on May 14, 1954, or who has been residing in the state for a period of 10 years, and has “lawfully acquired immovable property in the state”.
Historical Background of Article 35A:
The need to make a distinction between permanent and non-permanent residents can be traced back to an agitation by Kashmiri Pandits against the hiring of Punjabis in the state administration, which eventually led to a 1927 law promulgated by Maharaja Hari Singh that sought to provide certain privileges to permanent residents, especially in the purchase of land.
Because of the special circumstances surrounding the accession to India and the guarantee of special status, representatives of Jammu and Kashmir felt the law regarding permanent residents needed to continue to preserve their special rights vis-a-vis the rest of the Union of India.
When was Article 35A introduced?
It was brought in by a presidential order in 1954 in order to safeguard the rights and guarantee the unique identity of the people of Jammu-Kashmir. Only the Jammu-Kashmir assembly can change the definition of permanent residents through a law ratified by a two-thirds majority.
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 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 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—
employment under the State Government;
acquisition of immovable property in the State;
settlement in the State; or
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."
Challenges to Article 35A
Article 35A was inserted via the Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the president under Article 370(1)(d), and not through a constitutional amendment under Article 368 of the Constitution of India. The petitions currently before the Supreme Court argue that the insertion of a constitutional article by an order of the president is void as it was not based on the procedure for amendment to the Constitution.
Can Presidential order amend the constitution?
The present challenge to Article 35A in the Supreme Court is based on the ground that it could have been introduced in the Constitution only through a constitutional amendment under Article 368, and not through a Presidential Order under Article 370. This is an argument that the Supreme Court has rejected on at least three occasions earlier.
In 1961, a five-judge Constitution Bench held that when, through an order under Article 370, the President applies any provision of the Indian Constitution to J&K, the term “modification” must be considered in its “widest possible amplitude”. It will not be limited to making only partial changes to the provision, but will include the power to “extend” and “enlarge” the constitutional provision, including making a “radical transformation”.
In 1969, another five-judge Bench reaffirmed this view, while on December 16, 2016, a two-judge SC Bench followed the two earlier Constitution Bench decisions to reiterate that the Presidential Order can “extend” or “enlarge” the provisions of the Indian Constitution in its application to J&K.
Gender Discrimination:
One of the other three petitions filed by Charu Wali Khanna, lawyer and former member of the National Commission for Women, questioned 35A saying it made way for gender discrimination by denying property rights to a J&K permanent resident woman who marries a non-resident while a man who marries outside the state will continue to enjoy his rights.
In the former, the children of the woman who marries a non-resident are also denied property rights.
Khanna’s counsel told the court that former J&K chief ministers Farooq Abdullah and Omar Abdullah had married women from outside the state and they got permanent resident status. “But we are state subjects and lose rights if we marry outside the state,” the counsel said.
J&K countered this saying the position on the matter was settled by the state High Court in the case of Sushila Sawhney in 2002 wherein it held “in view of the majority opinion, we hold that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of the state of Jammu and Kashmir.”
Khanna, however, pointed out that the 2002 order was silent on the rights of the children born to woman who marry non-residents.
Political parties in J&K had warned of agitation if 35A was abrogated. Hardline groups have alleged that it’s an attempt to settle people from outside J&K in the state and to change its Muslim-majority character
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