The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 preceded the 1952 Delhi Agreement which was signed between India’s first Prime Minister Nehru and the state’s popular leader Sheikh Abdullah, which granted Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.
Article 35A is a provision in the Indian constitution that grants the Jammu and Kashmir assembly complete freedom to decide or define the permanent residents of the State and grant them special privileges and rights including government jobs, scholarship and other government welfare aids. A Permanent Resident of the state has been defined as a person who was a subject of the state on May 14, 1954, or a person who has been residing in the state for a period of 10 years, and has “acquired immovable property in the state” under the ambit of law. This provision also states that no act by the legislature made under Article 35A could be challenged for defying the Constitution or any other law of the land.
How did it come about?
Prior to the indian Independence from the British colonialism, the princely state of Jammu and Kashmir was under the British Paramountcy that allowed the state to have internal autonomy. Therefore, the people of Jammu and Kashmir were the subjects of the state instead of being the British colonial subjects.
Post the political movements in the state in the early 20th century, a “hereditary state subject” was introduced through provisions between 1912 and 1932 and that is how the 1927 Hereditary State Subject Order by the Maharaja of Jammu and Kashmir Hari Singh granted the state subjects the right to office of the government and also the right to land use as well as ownership. However, these privileges were not allowed to non-state subjects. This law also defined who were the migrants to the state.
In October 1947, after the state of Jammu and Kashmir was ceded to the Indian side by the Maharajah with Instrument of Accession, he also ceded his rights to control defence, external affairs and communications to the Government of India. In 1949, the state’s popular leader Sheikh Abdullah took over from the Dogra leader to negotiate the political relationship between New Delhi and Jammu and Kashmir, which led to the inclusion of controversial Article 370 (1) (d) of the Constitution which only ceded the defence, foreign affairs and communication rights of the state and not the autonomy of the state.
Article 35A was included into the Constitution in 1954 by an order by then President Rajendra Prasad on the counsel of the Jawaharlal Nehru Cabinet.
Now, this 1954 Presidential Order was issued under controversial Article 370 (1) (d) of the Constitution, allowing the President to make certain “exceptions and modifications” to the Constitution for the ‘State subjects’ of Jammu and Kashmir.
Why is it controversial?
This means that this is an expansion of an existing provision, so it does not need to be approved by the Parliament and only the Jammu-Kashmir assembly can change the definition of Permanent Resident through a law ratified by a two-thirds majority.
Article 370 guarantees special status to J&K, restricting Union’s legislative powers to just three areas: defence, foreign affairs, and communications. While Article 35A prevents non-permanent residents from buying or owning properties in Kashmir, it also allows Hindus from Jammu region and Buddhists of Ladakh to settle down in Kashmir.
The 1952 Delhi Agreement
The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 preceded the 1952 Delhi Agreement which was signed between India’s first Prime Minister Nehru and the state’s popular leader Sheikh Abdullah, which granted Indian citizenship to the ‘State subjects’ of Jammu and Kashmir. However, the catch here is the fact that state is empowered to decide over the rights and privileges of the state subjects, which are the permanent residents of the state.
Therefore, Article 35A was added to the Constitution as a testimony of the special consideration the government of India accorded to the ‘permanent residents’ of Jammu and Kashmir.
Why is it contested?
Many contend about how the parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution.
Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution while Article 370 was passed by the order of the President without discussion in the Indian parliament in 1954, leading many to question the legality of Article 370.
Petitions against Article 35A and why it matters
We the Citizen, an NGO challenged Article 35A and Article 370 saying it was not introduced through a constitutional amendment which is a requirement under Article 368. We the Citizen also asserted that Article 35A was never presented before the Parliament for its approval.
The petition says that Article 35 A negates the “very spirit of oneness of India” because it makes a “class within a class of Indian citizens”. Stopping the Indian citizenry from other States from getting employment or even buying property within the state of Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Indian Constitution.
In addition, another petition by two Kashmiri women have also contested the Article 35A saying that the provision is discriminatory in nature as it deprives their children of their rights. Under the original of Article 35A, if a Kashmiri woman who marries an outsider loose all her rights and privileges.
However, the Jammu and Kashmir High Court in 2002 had upheld the women’s rights stating that the women would continue with their rights and privileges even if they marry an outsider. However, children of such women could claim any succession.