ARTICLE 35A (Syllabus: GS Paper 2 - Polity)

News-CRUX-10     29th August 2023        
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Context: : Chief Justice of India said Article 35A, which empowered the Jammu and Kashmir Legislature to define “permanent residents” of the State and provide them special privileges, denied fundamental rights to others.

  • The Chief Justice noted that Article 35A had even granted immunity from judicial review to these special privileges.

Article 35A

  • 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.
  • It treats non-permanent residents of J&K as ‘second-class’ citizens.
  • Non-permanent residents of J&K 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.
  • Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.
  • It was inserted unconstitutionally, bypassing Article 368 which empowers only Parliament to amend the Constitution.
  • The laws enacted in pursuance of Article 35A are ultra vires of the fundamental rights conferred by Part III of the Constitution, especially, and not limited to, Articles 14 (right to equality) and 21 (protection of life).
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