This write-up would not be dealing with the socio-political validity of Article 35A and will merely be restricted to the domain of its constitutionality, owing to its controversial origin. The reason for using the term ‘controversial’ here can be said to be justified by the fact that this Article came into force, not after a Constitutional Amendment Act passed by the Parliament but after an order issued by the then President of India i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 in concurrence with the State Government of Jammu and Kashmir while exercising his power under Article 370 of the Constitution.
Before India got her independence in 1947, Jammu and Kashmir was a princely state and the subjects were considered as ‘state subjects’ and not British colonial subjects. The privilege to the state subjects of J&K was further extended by the 1927 Hereditary State Subject Order issued by the erstwhile Maharaja of Jammu and Kashmir granting the state subjects with certain rights such as the right to hold government offices, right to acquire land etc. and subsequently, making these unavailable to non-state subjects.
After the State is included in the territory of Independent India through the ‘instrument of accession’, the State gave its powers over the defence, external affairs and communications to the Government of India retaining the rest of the subjects. The relationship between the GOI and State of J&K was formalised by Article 370 and further by the Delhi Agreement of 1952 signed between Jawaharlal Nehru (the then PM of India) and Sheikh Abdullah (the then CM of J&K). After this agreement was adopted by the constituent assembly of J&K, consequently, the President of India issued the order mentioned above under Article 370 through which, Indian citizenship was extended to the residents of J&K and Article 35A was introduced which enabled the State of J&K to legislate over the rights and privileges of the state subjects, who were regarded as the ‘permanent residents’ after the order was passed.
"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
(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,
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."
What Makes it Debatable-
The root cause of the debate over this article lies in its incorporation in the Constitution. Its inclusion evaded the conventional form of law-making by the legislature when the executive head- the President of India, issued an order, inserting this Article into the text of the Supreme Law of the land.
The main contention against the introduction of this Article is that the Constitution empowers only the Parliament through Article 368 to amend it and President over exercised his jurisdiction in this regard and therefore, the Article shall be declared unconstitutional and void. The Apex Court in Puranlal Lakhanpal v. President of India discussed the ambit of the power of the President under Article 370 to ‘modify’ any constitutional provision. Since the order which inserted Article 35A was issued in the exercise of the power given in Article 370, the court emphasized on it to check the validity of 35A. Though, the Court observed the word ‘modification’ as being equal in meaning to ‘amend’, the question still remains unanswered that whether an executive action can effectively amend the Constitution given the fact that Constitution itself provides that only the Parliament has the power to amend the Constitution.
Recently, an NGO called ‘WE the Citizens’ filed a writ petition in the Supreme Court of India challenging the constitutionality and legality of Articles 35A and 370 by terming it as against the spirit of Unity of India. The petition argues that Article 370 was included as a temporary provision to normalize the situation in J&K and making it a tool to bring permanent amendments like Article 35A cannot be said to be the intention of the constitution makers.
Another petition filed by a native of J&K contended that Article 35A restricts the basic right to property if a native woman marries a man not holding a permanent resident certificate. “Her children are denied a permanent resident certificate, thereby considering them illegitimate,” the petition said.
The Supreme Court has clubbed both the petitions and a three-judge bench has been constituted to look into this matter and the decision is awaited. Though, it prima facie abridges the Fundamental Rights of the non-permanent residents but simultaneously it has received support from the people of J&K and many political parties like PDP argues in favour of this Article as it preserves the autonomy given to the State at the time of its accession and thereby, its removal may result in mass scale violence in the valley.