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What is Article 35A of Indian Constitution? - History, Explanation & Controversy.

Updated: Aug 27, 2019

Article 35A of the Indian Constitution is an article that allows the Jammu and Kashmir state's legislature to define “permanent resident” of the state. This Article granted the Legislature of Jammu and Kashmir the complete freedom to decide who will be the Permanent Residents of the state Jammu and Kashmir.


In 1952 "Delhi Agreement" was signed between the then Prime Minister of Jammu and Kashmir, Sheikh Abdullah and the Prime Minister of India, Jawaharlal Nehru. The agreement extended Indian citizenship to the 'State subjects' of Jammu and Kashmir. After the Delhi agitation of 1952, the famous 'Article 35A' was added to the Constitution in 1954.


History
  • In 1927, the then Maharaja of Kashmir, passed the Hereditary State Subject Order which granted the respective state subjects with the right to government office and the right to land use and ownership. These rights were extended solely to the state subjects and eliminated any availability of the same to the non-state subjects.

  • After the accession of Jammu and Kashmir to the Indian Union, in October 1947, even though the Maharaja ceded all control to the Government of India, the exclusivity of state subjects remained unchanged.

  • In the 1952 Delhi Agreement, the government of the state and the Union collectively agreed upon the extension of Indian citizenship to all residents of the state but the state would still be empowered to legislature over the rights of the state-subjects, who will now be referred to as permanent residents. Article 35A was incorporated into the Constitution by an order of the then President Rajendra Prasad on the advice of Prime Minister Jawaharlal Nehru and his cabinet.

Provisions in Article 35A

“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 & Kashmir; or


B) Conferring on such permanent residents any special rights and privileges or imposing upon other


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.”


Controversies
  • A writ petition was filed by a Delhi-based NGO, We the Citizens, stating that Article 35A granted special status and privileges to the permanent residents and by doing so discriminated against the citizens of the rest of the country, or the non-permanent residents for that matter. There were a number of pointers provided by the said NGO that disfavoured any form of special treatment to selected citizen.

- Dr. Charu Wali Khanna v. Union of India WP (C) 396/2017; WP (C) 722/2014 - The Supreme Court will decide if the laws of Jammu and Kashmir relating to permanent residency place unconstitutional restrictions on fundamental rights. Specifically, the Court will look at the validity of Article 35A of the Constitution of India, 1950.

  • In another case, two Kashmiri women argued that the state's laws, flowing from 35A, had disenfranchised their children.




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