Article 35A

Topic: Special Provisions, Scheduled and Tribal Areas · NCERT: Beyond NCERT

Meaning

Article 35A was a provision added to the Constitution by a presidential order in 1954 (C.O. 48). It let the Jammu and Kashmir legislature decide who counted as a "permanent resident" of the state. It also let the state keep government jobs, the right to buy land and buildings, settlement in the state, and scholarships only for these residents. It stopped applying in August 2019.

It matters because it shows how a rule about rights could enter the Constitution through a presidential order instead of a constitutional amendment by Parliament. It was also at the centre of the debate between full integration and autonomy for J&K.

Explanation

What Article 35A allowed

• Who decided: The J&K state legislature could define who was a permanent resident of the state.
• What could be kept only for permanent residents:
• jobs under the state government
• the right to acquire immovable property (to buy land and buildings)
• settling in the state

• scholarships and other state help

• Protection from challenge: Article 35A shielded these state laws. They could not be struck down just because they took away rights that other Indian citizens have under Part III (Fundamental Rights).

• Link to the J&K Constitution:
• Section 6 of the J&K Constitution defined who was a permanent resident.
• That constitution was adopted on 17 November 1956 and came into force on 26 January 1957.

How it entered the Constitution

• Art. 370(1)(d) allowed parts of the Indian Constitution to apply to J&K only through presidential orders. A presidential order is an order the President issues under Article 370. The President could also make "exceptions and modifications" to those parts.
• Step by step:
• Constitution (Application to J&K) Order 1950 (C.O. 10): applied only the subjects linked to defence, external affairs and communications.
• Delhi Agreement, 1952: a deal between the Union government and the state's leaders. It led to a much wider order.

• Constitution (Application to J&K) Order 1954 (C.O. 48):

  • It was issued with the concurrence (actual agreement) of the state government.
  • It extended citizenship, most Fundamental Rights and the Supreme Court's jurisdiction (its power to hear cases) to J&K.
  • It inserted Article 35A.

• Not an Art. 368 amendment:

• Article 368 is the normal way to amend the Constitution, through Parliament.
• Parliament never passed Article 35A.
• So it was not printed in the main text of the Constitution. It was printed in an appendix.

Limits and how it ended

• Women's status: In State of J&K v. Sushila Sawhney (2002), the J&K High Court ruled that a woman who marries a non-resident does not lose her permanent-resident status.
• End in 2019:
• C.O. 272 (5 August 2019) applied all provisions of the Constitution, "as amended from time to time", to J&K. This replaced the 1954 order and its special changes [3].
• The Jammu and Kashmir Reorganisation Act, 2019 then removed the ban on leasing land to people who were not permanent residents [2].

In the Constitution and practice

• Location: Article 35A was placed after Article 35 in Part III (Fundamental Rights). It applied only to J&K and was printed in an appendix, not in the main text.
• Source of power: Art. 370(1)(d), used through C.O. 48 (1954).
• Who used it: The J&K legislature, along with Section 6 of the J&K Constitution, which set out who was a permanent resident.
• Key instances:
• 1954: C.O. 48 inserted Article 35A.
• 1956–57: The J&K Constitution was adopted (17 November 1956) and came into force (26 January 1957). Its Section 6 defined permanent residents.
• 2002, Sushila Sawhney: the J&K High Court ruled that a woman married to a non-resident keeps her permanent-resident status.
• 2014, We the Citizens v. Union of India: a challenge to Article 35A was filed in the Supreme Court.
• 5 August 2019, C.O. 272: the whole Constitution was applied to J&K, and Article 35A stopped applying [3].
• After August 2019: the We the Citizens case became infructuous (pointless, because the issue no longer existed).

• 2019, Reorganisation Act: the ban on leasing land to non-permanent residents was removed [2].

• Wider result: Article 370 itself stopped applying from 6 August 2019 through C.O. 273 [1]. In In Re: Article 370 (11 December 2023), the Supreme Court upheld this, which ended the J&K-only arrangement under which Article 35A had worked [1].

Don't confuse with

• Article 35: This is part of the original Constitution and applies to all of India. It gives Parliament the power to make laws on certain Fundamental Rights. Article 35A gave power to a state legislature (J&K's), and only for that state.
• Article 370: This was the main provision that gave J&K its special status and allowed presidential orders. Article 35A was a product of Article 370: it was inserted through an order made under Art. 370(1)(d).
• Art. 371 series (for example, Art. 371A for Nagaland): These are special provisions added by Art. 368 amendments passed by Parliament. Art. 371A came through the 13th Amendment, 1962. Article 35A came through an executive presidential order.
• Article 16(3): Under this article, Parliament can make a law requiring people to live in a state before they can hold certain jobs there. Article 35A let the J&K legislature decide residency and the rights linked to it, and it covered land and settlement as well as jobs.

Prelims Hooks

• Article 35A came in through C.O. 48, the Constitution (Application to J&K) Order 1954, made under Art. 370(1)(d). It was not added by an Art. 368 amendment. This is a common trap.
• Article 35A was printed in an appendix to the Constitution, not in its main text.
• Section 6 of the J&K Constitution, which was in force from 26 January 1957, defined "permanent residents".
• State of J&K v. Sushila Sawhney (2002): the J&K High Court ruled that a woman who marries a non-resident does not lose permanent-resident status.
• We the Citizens v. Union of India (2014) challenged Article 35A. It became infructuous after August 2019.
• C.O. 272 (5 August 2019) applied the whole Constitution to J&K, ending Article 35A [3]. The J&K Reorganisation Act, 2019 removed the ban on leasing land to non-permanent residents [2].

Mains Points

• Constitutional method and federal consent (GS-II):
• Article 35A changed the scope of Fundamental Rights through an executive order, not through Parliament under Art. 368.
• Supporters said it honoured the terms of accession and the state's concurrence.

• Critics said rights should not be changed without Parliament's debate and vote.

• Equality vs protecting local identity (GS-II):

• Article 35A protected the state's land, jobs and population mix.
• But it limited the rights of other Indian citizens, and before Sushila Sawhney (2002) it raised questions of unfair treatment of women.

• This puts regional autonomy against one citizenship and equal rights.

• Reform path after 2019 (GS-II):

• Locals can still protect their land and jobs, but through ordinary law or Art. 371-type provisions instead of special constitutional status. The post-2019 change to land-leasing rules is an example [2].
• This links to the 2023 directions to hold assembly elections by 30 September 2024 and to restore statehood "at the earliest" [1].

Related concepts

• Article 370
• Constitution (Application to Jammu and Kashmir) Order 1954
• Constitution of Jammu and Kashmir

Read more

• Jammu and Kashmir under Art. 370 (1947-2019)