The Article of Contention: Why Article 35A has always been controversial

3 min read
  1. Article 35A of the Indian Constitution empowers Jammu and Kashmir  legislature to define state’s permanent residents and their special rights and privileges.
  2. The law was inserted in the Constitution through a Presidential order of 1954 instead of a parliamentary amendment under Article 368.
  3. The law related to Permanent Residency was drawn from the state subject laws introduced by Maharaja Hari Singh in early 20th century during the Dogra rule.J&K was a princely state until 1947 when it acceded with India using Instrument of Accession(IOA).
  4. J&K defines its permanent residents as all persons born or settled within the state before 1911 or after having lawfully acquired immovable property and residence in the state for not less than 10 years or prior to that date.All emigrants from Jammu and Kashmir,including those who migrated to Pakistan are considered state subjects.The descendants of emigrants are considered state subjects for two generations.
  5. Further,the law prohibits non-permanent residents from settling permanently in the state, acquiring immovable property, government jobs, scholarships and aid.
  6. However,the law is discriminatory against the J&K women.It disqualified them from their state subject rights if they married non-permanent residents. 
  7. But in a landmark judgment in October 2002,the J&K high court held that women married to non-permanent residents will not lose their rights.But ,the children of such women don’t have succession rights as of now.
  8. Article 35A has been a subject of public debate and controversy ever since it was challenged in the Supreme Court in 2014 on the grounds that it was not added to the Constitution through amendment under Article 368 and never presented before Parliament.Although the case is sub-judice,the government can bring a bill in Parliament to scrap Article 35A.