Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

2019-2020

Constitutional Law Project

On

Tracing The History and Conflict relating to Article 35A and 370

Submitted to Lucknow

Professor Submitted by

Dr Ram Manohar Lohiya Aayaksh chadha

National Law University Enrollment no. 180101003

Section A
 ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and
supported me during the making of this project.

Words are inadequate in offering my deep sense of gratitude to my

Professor for her precious guidance.

With her enthusiasm, her inspiration and her great efforts to

explain things clearly and simply, she helped throughout my
analysis of work with lots of encouragement, sound advice, and good
innovation.

I would also like to thank the librarians of Dr. Madhu Limaye

Library who extended their assistance to me by helping me out
consult the relevant books.

I know that despite my best efforts, some discrepancies might have

crept in which I believe my humble Professor would forgive.

Thanking You All.

 CONTENTS

1) Introduction
2) Permanent Citizens

3) Criticisms and controversy

4) Conclusion

5) references
 4

INTRODUCTION

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.

This article was added in the constitution on 14th may 1954 through a presidential
order under article the provisions of article 370. The president of India at the time,
Dr Rajendra Prasad added the article in the constitution on the advice of the
Jawaharlal Nehru Cabinet. The 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 the provisions of 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.[1]

The state subjects referred here are the people living in the state before 1954 and it
has its origins even before independence. Prior to 1947, Jammu and Kashmir was a
princely state under the British rule. The people of the princely states were "state
subjects", not British colonial subjects. In the case of Jammu and Kashmir, the
political movements in the state in the early 20th century led to the emergence of
"hereditary state subject" as a political identity for the State's people. In particular,
the Pandit community had launched a "Kashmir for the Kashmiris" movement
 5

demanding that only Kashmiris should be employed in state government jobs.

Legal provisions for the recognition of the status were enacted by the Maharaja of
Jammu and Kashmir between 1912 and 1932. The 1927 Hereditary State Subject
Order granted to the state subjects the right to government office and the right to
land use and ownership, which were not available to non-state subjects.[2]

After the accession of Kashmir to the Indian union on 26 October 1947 the then
maharaja of the state Raja Hari Singh agreed to give control of matters of defence,
communications and external affairs to the Government of India. These were
known as ceded subjects. [2r]

This relationship was formalised with the introduction of article 370 and the
constitutional order of 1950. Further talks were held between Pandit Jawaharlal
Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah. This
resulted in the 1952 Delhi agreement and the controversial Constitution
(Application to Jammu and Kashmir) Order of 1954, which extended Indian
citizenship to the ‘State subjects’ of Jammu and Kashmir and simultaneously the
Article 35A was inserted into the Indian constitution enabling the State legislature
to define the privileges of the permanent residents.[3]

This was conveyed by Jawaharlal Nehru to the Lok Sabha - “​The question of
citizenship arose obviously. Full citizenship applies there. But our friends from
Kashmir were very apprehensive about one or two matters. For a long time past, in
the Maharaja's time, there had been laws there preventing any outsider, that is,
any person from outside Kashmir, from acquiring or holding land in Kashmir. If I
mention it, in the old days the Maharaja was very much afraid of a large number
of Englishmen coming and settling down there, because the climate is delectable,
 6

and acquiring property. So although most of their rights were taken away from the
Maharaja under the British rule, the Maharaja stuck to this that nobody from
outside should acquire land there. And that continues. So the present Government
of Kashmir is very anxious to preserve that right because they are afraid, and I
think rightly afraid, that Kashmir would be overrun by people whose sole
qualification might be the possession of too much money and nothing else, who
might buy up, and get the delectable places. Now they want to vary the old
Maharaja’s laws to liberalise it, but nevertheless to have checks on the acquisition
of lands by persons from outside. However, we agree that this should be cleared
up. The old state’s subjects definition gave certain privileges regarding this
acquisition of land, the services, and other minor things, I think, State scholarships
and the rest. So, we agreed and noted this down: 'The State legislature shall have
power to define and regulate the rights and privileges of the permanent residents
of the State, more especially in regard to the acquisition of immovable property,
appointments to services and like matters. Till then the existing State law should
apply.”​ [4]

The text of Article 35 A is as follows

1. "​Saving of laws with respect to permanent residents and their rights. —

Notwithstanding anything contained in this Constitution, no existing law in
force in the State of Jammu and Kashmir, and no law hereafter enacted by
the Legislature of the State:
a. defining the classes of persons who are, or shall be, permanent
residents of the State of Jammu and Kashmir; or
 7

b. conferring on such permanent residents any special rights and

privileges or imposing upon other persons any restrictions as
respects—
i. employment under the State Government;
ii. acquisition of immovable property in the State;
iii. settlement in the State; or
iv. right to scholarships and such other forms of aid as the State
Government may provide,
2. Shall be void on the ground that it is inconsistent with or takes away or
abridges any rights conferred on the other citizens of India by any provision
of this part." [5]

The state is given the power to decree exceptions to any extension of the Indian
Constitution to the state, other than in the matter of ceded subjects by both the
Instrument of Accession and article 370.

This is the reason that article 35 (a) is seen as an authorized exception by the power
of article 370 (1) (d). Article 35 (a) was added by the President who is the
executive head without any prior discussions in the parliament which is the law
making part of the government hence questions have been asked as to its legality
 8

PERMANENT RESIDENTS

According to the constitution of Jammu and Kashmir which was adopted on

november 17 1956 permanent residents are identified as the people living in the
state as “State subjects” on May 14, 1954 or has been a resident for more than 10
years and has “lawfully acquired” immovable property in the state.

The Jammu and Kashmir state legislature can alter the definition of permanent
residents or modify the privileges applicable to them through a law passed with
two-thirds majority.

The law is as follows -

● Jammu and Kashmir Constituent Assembly incorporated in Jammu and

Kashmir Constitution discriminatory provisions under Section 51
(Qualifications for membership of the Legislature – A person shall not be
qualified to be chosen to fill a seat in the Legislature unless he is a
Permanent Resident of the State), Section 127 (Transitional provisions –
Until other provision is made in this behalf under this Constitution, all the
laws in force immediately before the commencement of this Constitution and
applicable to any public service or any post which continues to exist after
the commencement of this Constitution, as service or post under the State,
shall continue in force so far-as consistent with the provisions of this
Constitution) and Section 140 (The elections to the Legislative Assembly
shall be on the basis of adult suffrage; that is to say, every person who is a
permanent resident of the State and who is not less than Eighteen years of
age on such date.
 9

● No person who is not a Permanent Resident of Jammu and Kashmir can own
property in Jammu and Kashmir.
● No person who is not a Permanent Resident of Jammu and Kashmir can
obtain job within Jammu and Kashmir Government.
● No person who is not a Permanent Resident of Jammu and Kashmir can join
any professional college run by government of Jammu and Kashmir or get
any form of government aid out of government funds.[​ 6]

This definiton of permanent citizens also prohibits a women from marrying outside
the state as her children lose the inheritance and are not eligible for Permanent
Resident certificates. The Jammu and Kashmir high court in 2002 changed the law
relating to this as the previous rules took away the rights of the female citizens to
being a permanent resident after marrying a non permanent citizen of the state or
any Indian citizen not a permanent resident of the state.

Even though the law prohibits non Kashmiri residents of the state from buying
property in the state the opposite does not hold true as Kashmiri citizens enjoy the
same rights in the rest of India as other citizens.
 10

CRITICISMS AND CONTROVERSY

The constitution of India lays down the procedure for the lawmakingr process in
the country in which the laws are made by the legislature which is made up of the
representatives of the citizens of the country and the function of the executive is to
see to the implementation of the laws.

This well defined parliamentary route of lawmaking was bypassed when Article 35
(a) was introduced by a presidential order as Article 368 of the constitution of India
only empowers the parliament to amend the constitution and this act of the
president was seen as an overreach of the power of the executive. A five-judge
Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs.
The President of India discusses the President’s powers under Article 370 to
‘modify’ the Constitution. Though the court observes that the President may
modify an existing provision in the Constitution under Article 370, the judgment is
silent as to whether the President can, without the Parliament’s knowledge,
introduce a new Article.[7]

Article 370 was also supposed to be a temporary provision brought about to bring
normality to the state and the constitution assembly did not intend Article 370 to be
a tool to bring permanent amendments, like Article 35A, in the Constitution.

A writ petition filed by NGO We the Citizens challenges the validity of both
Article 35A and Article 370 saying that they are against the “very spirit of oneness
of India” as it creates a “class within a class of Indian citizens”. Restricting citizens
from other States from getting employment or buying property within Jammu and
 11

Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the

Constitution.[8]

It facilitates the free and unrestrained violation of fundamental rights of those

workers and settlers like Scheduled Caste and Scheduled Tribe people who have
lived there for generations. The Valmikis who were brought to the state during
1957 were given Permanent Resident Certificates on the condition that they and
their future generations could stay in the state only if they continued to be
safai-karmacharis (scavengers). But even after six decades of service in the state,
their children are doomed to be safai-karmacharis. They have been denied the right
to quit scavenging and choose any other profession.[9]

The lack of industrialization in the state is also visible as non citizens of Kashmir
cannot buy property and therefore also can’t set up a business.

It gives a free hand to the state government and politicians to discriminate between
citizens of India, on an unfair basis and give preferential treatment to some by
trampling over others, since the non-residents of the state are debarred from buying
properties, getting a government job or voting in the local elections.[10]

The legality of Article 35A is being challenged on the grounds that it was not
added to the constitution by a constitutional amendment under Article 368. For the
article does not by itself confer any right on J&K state subjects. The Instrument of
Accession signed by the Maharaja of Kashmir in October 1947 specified only three
subjects for accession: foreign affairs, defence and communications. In July 1949,
Sheikh Abdullah and three colleagues joined the Indian Constituent Assembly and
negotiated over the next five months the future relationship of Kashmir with India.
 12

This led to the adoption of Article 370, which restricted the Union’s legislative
power over Kashmir to the three subjects in the Instrument of Accession. To
extend other provisions of the Indian Constitution, the Union government would
have to issue a Presidential Order to which state government’s prior concurrence
was necessary. Further, this concurrence would have to be upheld by the
constituent assembly of Kashmir, so that the provisions would be reflected in the
state’s constitution. This implied that once Kashmir’s constituent assembly framed
the state’s constitution and dissolved, there could be no further extension of the
Union’s legislative power. This was the core of J&K’s autonomy.[11]
 13

CONCLUSION

Even though articles 370 and 35 a were drafted in part XXI of the
constitution – Temporary, transient and special provisions , they were
still in place for more than 60 years and during this time both the
government at the center and the state used them for their own purposes.

On august 5 2019 president Ram Nath Kovind passed a constitutional

order superseding the 1954 order, making all provisions of the Indian
constitution valid to the state of Jammu and Kashmir based on the
resolution passed in both houses of parliament with 2/3​rd​ majority and on
6​th​ august made all clauses of article 370 inoperative in the state except
for clause 1.

Along with this the parliament also passed the Jammu and Kashmir
Reorganization act which split the state into 2 union territories – union
territory of Jammu and Kashmir and the union territory of Ladakh. The
reorganization will take effect on 31​st​ October 2019.

With the removal of article 370 , article 35a loses its validity and ceases
to exist.[12]
 14

REFERENCES

[1] Article 370 of the constitution of India

[2] https://www.thehindu.com/news/national/what-is-article-35a/art
icle19567213.ece
[3] https://economictimes.indiatimes.com/news/politics-and-nation/
article-370-rendered-toothless-article-35a-ceases-to-exist/articlesh
ow/70535292.cms?from=mdr

[4] https://www.greaterkashmir.com/news/opinion/article-35a-is-be
yond-challenge/

[5] Article 35 (a) of constitution of India

[6] http://www.jklaw.nic.in/constitution_jk.pdf

[7] https://www.thehansindia.com/posts/index/Hans-Classroom/201
7-02-09/Articles-370-35/279444

[8] http://www.scobserver.in/court-case/constitutionality-of-article-
35a

[9] https://web.archive.org/web/20180805143454/https://www.tribu
neindia.com/news/jammu-kashmir/community/in-j-k-most-manual
-scavengers-can-t-get-rehab-benefits/171725.html
 15

[10] https://www.thehansindia.com/posts/index/Hans-Classroom/201
7-02-09/Articles-370-35/279444

[11] https://web.archive.org/web/20170810140824/http://www.hindu
stantimes.com/columns/kashmir-s-article-35a-conundrum-new-del
hi-must-tread-carefully/story-YHxSxHXCZo3J7oPPRKWpGJ.htm
l

[12] http://egazette.nic.in/WriteReadData/2019/210049.pdf