Article 35A: Defining "Permanent Residents" of Jammu and Kashmir

Article 35A was a unique provision in the Indian Constitution that empowered the Jammu and Kashmir Legislature to define who qualified as "Permanent Residents" of the state. It granted these residents exclusive rights and privileges while imposing restrictions on other Indian citizens.

1. Historical Background and Origin

Article 35A was not part of the original Constitution. It was inserted through The Constitution (Application to Jammu and Kashmir) Order, 1954, issued by President Dr. Rajendra Prasad under Article 370. This followed the 1952 Delhi Agreement between Jawaharlal Nehru and Sheikh Abdullah.

2. Key Provisions and Privileges

The article provided legal immunity to state laws that conferred special rights to permanent residents in four key areas:

  • Employment: Exclusive right to State Government jobs.
  • Property: Only permanent residents could acquire immovable property (land) in the state.
  • Settlement: Right to settle permanently in Jammu and Kashmir.
  • Aid: Exclusive access to Government scholarships and other forms of public aid.

3. Major Controversies and Criticisms

  • Gender Bias: It was criticized for being discriminatory against women. If a J&K woman married a non-resident, her children were denied succession rights and permanent resident status.
  • Constitutional Procedure: Critics argued it bypassed Article 368 (Amendment procedure) as it was added via a Presidential Order without Parliamentary approval.
  • Violation of Equality: It was seen as a violation of Article 14 (Right to Equality) by creating a "class within a class" of Indian citizens.

Definition of Key Term

Permanent Resident (PR): Defined under the J&K Constitution as a person who was a State Subject on May 14, 1954, or had lived in the state for 10 years and lawfully acquired immovable property.

4. Current Status: The 2019 Abrogation

On August 5, 2019, the President of India issued C.O. 272, which effectively superseded the 1954 Order. This led to the abrogation of Article 35A. Consequently:

  • The distinction between "residents" and "non-residents" regarding property and jobs was removed.
  • New Domicile Rules were introduced, allowing those living in J&K for 15 years (or studying for 7 years) to apply for jobs and property.

Conclusion

The repeal of Article 35A marked a shift toward "One Nation, One Constitution." While proponents view it as a step for national integration and economic investment, others express concerns over demographic changes. For an OPSC student, understanding this as a transition from asymmetric federalism to complete integration is crucial.

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