What is Article 35A ?

Posted by ayush mishra
November 14, 2017

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It came into existence in 1954 in the Indian constitution by presidential order, exclusively for Jammu & Kashmir – even before the separate constitution for Jammu and Kashmir was introduced in 1956.

It delineates the rights of “Permanent Residents” & “Non-Permanent Residents” of Jammu & Kashmir.

But who is a permanent or a non-permanent resident of J&K?

  • A person was considered a “Permanent Resident” of J&K if he/she fulfilled either of these conditions:

A. They were born or settled in the J&K before 1911.

B. The person legally acquired any immovable property (land, buildings) in J&k before 1946 .

  • The person who have migrated to J&K in conditions other than stated above are considered as “Non-Permanent Resident” of J&K. Like the person migrated during partition 1947 from Pakistan or from any other state of India to J&K , the person willing or unwillingly settled in J&k after 1911.

The refugee of Pakistan settled in J&K in 1947 are also called “Unfortunate Indians”

“This article says that any law made by state govt. of J&K in respect of conferring some privileges to their Permanent Residents & imposing some restrictions on Non-Permanent residents will be constitutional”. It is exactly in same language is mentioned in bare act.

In this reference the govt. of J&K lawfully debars or prohibits or exempt the Non permanent Resident of J&K from the following rights or aids or conditions :

  • Employment under state govt.
  • Acquisition of Immovable property
  • Any quota or aid in admission in school /colleges
  • Settlement (Permanent) in the state
  • Right to vote
  • some other aids govt. can provide

It was introduced since J&K is treated as an special part of the country because of its dispute with neighbouring countries.

But it has became an discriminatory law because it hinders the fundamental rights of rest citizens of India since it has countered the Right to Equality . It do not treats all the citizens equally.

The matter to understand is that the LAW is discriminatory not the Article-35A or constitution. Since the article only gives the liberty that laws made under J&K govt. will be constitutional.

What is the ground problem with Article-35A? Why it has been coined in the media?

In the Indian constitution article 368 states that to make any amendment in constitution of India Parliament must pass it on the basis of legal discussions. But “Article 35 A it was an presidential order it was not passed by the parliament of India. So this article seems to be having zero credibility for its application constitutionally.

Case 1– Recently a woman of J&K on the behalf of her children argued on this , her children was debar from voting in the legislative elections of their of own state.

Case 2– An N.G.O has challenged the Article 35A in the supreme court in 2014 on its constitutionality

The other unspoken problem is that even the people who are living J&K from years ago are still exempted from basic rights. they are unemployed , uneducated, have no permanent residence .They cant choose their own govt. In their own country they are living like an REFUGEE.

some where, due to these serious issues of people of J&K, it promotes the non-favourable activities in Jammu & kashmir. SO to maintain the federalism & sovereignty of country and enforce the rights and laws equally the amendments should be done.

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