Article 35A of the Indian Constitution

We should have a big discussion about whether Article 35A and Article 370 of the Constitution are valid.
The Supreme Court is hearing a case where refugees from West Pakistan, who came to India during the 1947 partition, are questioning the validity of Article 35A.

Must Read Blogs
Article 35 of the Indian Constitution	Article 370 Case in Supreme Court
Article 370 of Indian Constitution	J&K Reorganisation (Amendment) Bill, 2023
Jammu & Kashmir: A Crucial Part of India’s History	War Under International Law

What is Article 35A?

In 1954, a presidential order was issued under Article 370 of the Indian Constitution, which deals with the relationship between the Union of India and Kashmir. This order introduced Article 35A, giving the Jammu and Kashmir state’s legislature the authority to determine who qualifies as a “permanent resident” of the state. These permanent residents are then granted special rights and privileges.
Under Article 35A, the state’s legislature has the power to create laws without facing legal challenges based on the grounds of violating the Right to Equality for people from other states or any other rights under the Constitution. Essentially, it allows the state to define and safeguard the rights of its permanent residents without conflicting with constitutional principles.

Details about how it was added which might make it unconstitutional

In 1954, Article 35A was added to the Constitution through a decision by President Rajendra Prasad and the Union Cabinet led by Jawaharlal Nehru. This move followed the 1952 Delhi Agreement, which granted Indian citizenship to the people of Jammu and Kashmir (J&K).
The controversial Constitution (Application to Jammu and Kashmir) Order of 1954, based on Article 370 (1) (d), allowed the President to make exceptions and modifications to the Constitution for the benefit of J&K citizens.
Article 35A reflected special consideration by the Indian government for the ‘permanent residents’ of J&K.
The President added Article 35A without going through the parliamentary route, raising questions about his jurisdiction. Normally, only Parliament can amend the Constitution under Article 368 (i).
The legality of Article 35A’s inclusion was questioned, as the President introduced it without parliamentary discussion. The specific power of the President to add a new Article without parliamentary involvement remains unclear.
A 1961 Supreme Court judgment in the Puranlal Lakhanpal vs. The President of India case discussed the President’s power under Article 370 to modify the Constitution but did not address the President’s authority to introduce a new Article without parliamentary approval. This important question remains unanswered.

Who is a Permanent Resident?

In the 1956 Jammu and Kashmir Constitution, a Permanent Resident is someone who, in addition to being an Indian citizen, was either a state subject on May 14, 1954, or had been living in the state for 10 years. Also, they must own property in the state.

What Petitioners Say?

Some people are questioning Article 35A, arguing that it should have been introduced through a Constitutional amendment (Article 368) rather than a Presidential Order under Article 370.
They claim that Article 35A goes against the idea of unity in India because it creates a special category of citizens in Jammu and Kashmir. This, they say, violates fundamental rights (Articles 14, 19, and 21) by restricting citizens from other states from getting jobs or buying property in J&K.
One petition argues that Article 35A is unfair to women and goes against Article 14 of the Constitution. It points out that a J&K resident woman loses property rights if she marries a non-resident, while a man marrying outside the state retains his rights.

Apprehensions

The government’s active stance against Articles 35A or 370 is causing more discontent in the Valley.
People in the Valley view the government’s response on 35A as a step toward eliminating Article 370, which shields J&K from most Parliament-enacted laws unless approved by the J&K Legislative Assembly.
The court has requested the Centre to address a petition challenging Article 370, fueling concerns that the government is using legal means to make desired changes.

Centre’s Stand

The central government is likely to have a different view than the Jammu and Kashmir government on Article 35A. This is because Article 35A is seen as discriminatory against women who marry outside the state, as it restricts their ability to apply for jobs or buy property. This is believed to go against Article 14 of the Constitution.

What Critics Say?

Some people argue that Article 35A contradicts the principles of equality and unity in India. They say it prevents citizens from other states from getting jobs or owning property in Jammu and Kashmir, violating fundamental rights under Articles 14, 19, and 21 of the Constitution.
Critics also challenge Article 35A for safeguarding certain provisions in the Jammu and Kashmir Constitution. These provisions restrict the right to property if a native woman marries a man without a permanent residence certificate.
Recently, the Supreme Court suggested that a Constitution Bench might ultimately decide the validity of Articles 35A and 370.

Section 6 of the Jammu and Kashmir Constitution

This rule denies women the basic right to marry the person they choose by not granting property rights to their heirs if they marry someone without a Permanent Resident Certificate. Additionally, their children are not given a permanent resident certificate, which labels them as illegitimate and deprives them of any rights to the woman’s property, even if she is a permanent resident of Jammu and Kashmir.

Read Also: Bhima-Koregaon Battle