Jammu and Kashmir (J&K) was an integral part of the Dominion of India, according to the Instrument of Accession which was signed by Maharaja Hari Singh on October 26, 1947, and subsequently ratified by the Constituent Assembly of J&K.
Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare.
The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.
Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.
The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.
The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.
So Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.
The ‘classification’ created by Article 35A has to be tested on the principle of equality as it treats non-permanent residents of J&K as ‘second-class’ citizens. Such persons are not eligible for employment under the State government and are also debarred from contesting elections. Meritorious students are denied scholarships and they cannot even seek redress in any court of law.
The major sufferers are women who marry outside J&K. Though they retain their Permanent Resident Certificate, their children cannot be permanent residents. This restricts their basic right of inheritance. Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.
This matter requires the active participation of all stakeholders. It is necessary to give confidence to the residents of J&K that any alteration in status quo will not take away their rights but will boost J&K’s prosperity as it will open doors for more investment, resulting in new opportunities. Article 35A, which was incorporated about six decades ago, now requires a relook, especially given that J&K is now a well-established democratic State.