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IS ARTICLE 35A CONSTITUTIONALLY VALID

SUMMARY

Article 35A confers certain rights to the Jammu and Kashmir Legislature to restrict
citizens of other states of Union of India from residing or settling in three of its it’s
provinces which includes Jammu, Kashmir Valley and Ladakh. It became a part of the
Indian Constitution through a presidential order, i.e., The Constitution(Application to
Jammu and Kashmir Order) 1954, leveraging the powers laid down by clause(1) of
Article 370 of the Indian Constitution. On July of 2018, a petition was filed by an NGO
Challenging its Constitutionality as the aforesaid article is in contravention with Article
19(1)(d) as its restricts a citizen of an Indian Union from settling in Jammu and Kashmir.
Supreme Court Lawyer Charu Wali Khanna has filed another petition stating that the
aforementioned Article violates Article 14. The primary crux of the petition filed is that a
women from Jammu and Kashmir loses her right to reside if she gets married to a person
from another state. The provisions enshrined in Article 35A is discriminatory on Women
and it directly contravenes with Article 14,i.e Right to Equality. The crux of the
aforementioned issue is that, should the Government of India ignore the historical pact it
had with its king, Maharaja Hari Singh who advocated for complete autonomy for the
State of Jammu and Kashmir by adhering to the principles enshrined in its Constitution?
Adding on to that it is imperative to look at how it would resonate with the people of
Jammu and Kashmir as it alters the demographics and culture of the state.

HISTORY OF JAMMU AND KASHMIR

In British India there were over 565 princely states that were indirectly controlled by the
British Empire. The British gave a greater deal of autonomy to some of the states,
However defence and external affairs was still administered by the British. The
Government of India Act,1935 introduced the concept of ‘Instrument of Accession’
where a certain ruler can accede his princely state or kingdom to the Union of India.
Almost all princely states except Hyderabad and Jammu and Kashmir. It is imperative to
note that the princely state of Hyderabad was acceded through a military operation which
was codenamed as ‘operation polo’ but Jammu and Kashmir posed a different problem to
India.
It is to be noted that Jammu and Kashmir was ruled by Maharaja Hari Singh who wanted
his kingdom to be Independent and later signed the Standstill agreement to express his
intention. Sheikh Abdullah, the leader of Kashmir’s largest political party, National
Conference despised the dogra rule led by Maharaja Hari Singh and was expecting him to
abdicate his position as the ruler of the kingdom. In the meantime, the Islamic Republic
of Pakistan wanted to occupy Kashmir. So it sent certain tribesman from the North
Western Frontier Province(now known as Khyber Pakhtunkhwa) which was assisted by
the Pakistani Army and its Intelligence(Inter Services Intelligence) to annex the kingdom
by force. As soon as he got to know about Pakistan’s intention to annex the kingdom, he
immediately sough India’s help to push back the Invading Tribesman. India conceded to
the Maharaja’s demands on two conditions, firstly, he must sign the instrument of
accession and secondly, he must set up an interim government led by Sheikh Abdullah.
The king conceded to the demands put forth by India. Later, Indian troops were airlifted
in Srinagar where they successfully managed to push back the forces and secured the
provinces of Jammu, the Kashmir valley and Ladakh and left Pakistan with some parts of
Jammu(now known as Azad Jammu and Kashmir) and Northern Areas(now known as
Gilgit-Baltistan). Later, a UN sponsored Ceasefire came into force and it is imperative to
note that the territories occupied lost by India is still under Pakistani Occupation. As of
now, India has taken little to no steps to retrieve the territories that was forcibly annexed
by Pakistan.

When the Constitution of India came into force in January 26, 1950, special provisions
were conferred to state of Jammu and Kashmir which was considered as a temporary
provision but exists till date. After Independence, Sheikh Abdullah declined to accede
completely to the Union of India amid chaos. Whilst most of the states were readying to
adopt the newly crafted constitution, Jammu and Kashmir declined to do the same in view
of its political predicament. In order to fill the void, a temporary constitution, i.e, Article
370 was adopted exclusively for the state of Jammu and Kashmir. This temporary
provision will be in force until normality is restored to the state.

ADOPTION OF ARTICLE 35A BY THE J&K CONSTITUENT ASSEMBLY


Prior to the Delhi Agreement which was signed in 1952, the constituent assembly of
Jammu and Kashmir met again in 1954 to formally ratify the aforesaid agreement which
granted a greater deal of autonomy with regards to its state subjects. It is imperative to
note that Article 35A lays down certain provisions which debars or prevents the subjects
of other states of India from residing, settling and acquiring immovable property. It
should be noted that the aforesaid provisions are in direct contravention with basic
Fundamental Rights which are enshrined in Part III of the Constitution of India. As a
matter of fact, the presidential order of 1954 ratified Article 35a which is considered as on
of the biggest blunders in the History of Independent India.

WHY ARTICLE 35A CONTRAVENES WITH THE BASIC STRUCTURE OF


THE CONSTITUTION OF INDIA
The provisions laid down by Article 35A is in direct contravention with Article 14, i.e,
right to equality as it debars the citizens of other states of India from residing, settling and
to acquire immovable property from the state. Adding on to that, it also prevents the
subjects of other states of India from voting in local elections which is considered as a
constitutional right and they are also exempted from employment opportunities. It also
deters various private enterprises from other states of India from investing in the state. It
is imperative to note that the provisions laid down by Article 35A violate the principles of
gender equality as it revokes the resident memberships of women who marry men outside
Jammu and Kashmir. Adding on tot that, the children of such union are not entitled to
attain the Permanent Resident Certificate(PRC). They are not conferred with the rights
which are laid down by Article 35A. It should be noted that the same does not apply to
the male subjects of the state. The possess the right to bequeath their property their
successors despite marrying someone outside of Jammu and Kashmir. It can also be
considered as another violation of Article 14(right to equality). It can be considered as an
attack on the democratic and egalitarian fabric of India. It is highly important to note that
the state legislature has not enforced any law which precisely defines the nature of
permanent citizens. It can be implied that the people of Jammu and Kashmir are subjected
to different treatments with regards to Citizenship.
For Example, Various Ethno-Linguistic Groups like Gorkhas and Balmikis have been
residing in the Kashmir valley for generations and they’ve been granted citizenship but
the refugees from West Pakistan were debarred from attaining the Permanent Resident
Certificate(PRC).
With reference to the aforementioned facts, it can be concluded that Ethnic and Gender
inequality prevails in Jammu and Kashmir and various groups are subjected to different
treatments.
Various representatives from different parties of Jammu and Kashmir which includes
National Conference, Jammu and Kashmir People’s Democratic Party and Jammu and
Kashmir Liberation Front have expressed their views by stating that the validity of the
aforementioned Fundamental Rights are subjected to the Delhi Agreement,1952 which
was ratified by a Presidential Order in 1954. But it is imperative to understand that a mere
presidential order does not form a part of our constitution. Any orders are decrees passed
by the president must attain the support of majority in both houses of our parliament. The
NGO which has piled a petition has stated that the aforementioned order by the president
can only be considered as an Annexure but not as an integral part of the Constitution.

In 1981, Jammu and Kashmir Legislative Assembly passed the J&K Resettlement Act
which was approved by the Kashmiri majority of the state. It opened the borders for all
people of Kashmiri descent who fled to Pakistan to return to Jammu and Kashmir as
Legitimate Citizens. But Non-Muslim Refugees from Pakistan and Occupied Kashmir
were exempted from this provision. It is to be noted that Uyghurs from Xinjiang who fled
to Kashmir before and prior to Chinese occupation were granted the status as State
Subjects. It can easily be implied that previous and current incumbents were inclined
towards the Muslims. It can be considered as an attack on the Secular and Democratic
fabric of our Country.
ARTICLE 35A CONTRAVENES WITH THE FOLLOWING:

1. Article 35A is violative of Article 14 as it debars women who married outside


Jammu and Kashmir from residing, settling , acquiring and bequeathing
immovable property.

2. It is violative of Article 19(1)(d) as it prevents subjects of other states of India


from Residing, settling and acquiring property.

3. Various Ethno-Linguistic groups in Jammu and Kashmir are subjected to different


treatments with regards to settlement and citizenship which is another violation of
Article 14.

CONCLUSION:
With reference to the aforementioned facts it can easily be said that Article 35A is clearly
holding the state and its subjects bac. In view of its economic and political predicament,
various militant and separatist organisations have gained a stronghold in the state of
Jammu and Kashmir. It should be noted that it took our country and its judiciary many
decades to abolish triple talaq. This fact actually makes us question the credibility and
reliability of our Institutions. Article 35A offers breathing space for many separatist and
militant organisations like the Hurriyat, Jammu and Kashmir Liberation Front(JKLF),
Lashkar-e-Taiba and Jaish-e-Muhammad which in turn has helped them to exert their
influence. The existence of Article 35A is not conducive to the democratic, secular and
egalitarian fabric if our Country and it needs to be revoked.