Article 35 A- OVER-PRIVILEGED?

FINAL DRAFT SUBMITTED IN FULFILLMENT OF THE COURSE OF

CONSTITUTIONAL ALW FOR THE COMPLETION OF THE B.A.LLB.
(Hons.) COURSE

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR PATNA-800001, BIHAR

SUBMITTED TO

Prof. K.L. Bhatia (FACULTY OF CONSTITUTIONAL LAW)

SUBMITTED BY

KUMAR ABHISHEK, (1334), 6TH SEM. ,B.A.LLB

 Article 35 A- OVER-PRIVILEGED?

Contents

ACKNOWLEDGEMENT .............................................................................................................. 3

DECLARATION ............................................................................................................................ 4

Introduction ..................................................................................................................................... 5

I. Aims and Objectives ................................................................................................................ 5

II. Research Methodology ........................................................................................................ 5

CHAPTER 1- INTRODUCTION ................................................................................................... 6

CHAPTER 2- ORIGIN AND SIGNIFICANCE OF 35A............................................................... 8

CHAPTER 3 - ARTICLE 35A: CREATING CLOUDS OF DOUBT ABOUT FUNDAMENTAL

RIGHT IN THE STATE OF JAMMU & KASHMIR .................................................................. 10

CHAPTER 4 - ARTICLE 35 A OVER-PRIVILEGED? .............................................................. 17

CHAPTER 5 - CONCLUSION................................................................................................. 19

BIBLIOGRAPHY ......................................................................................................................... 21

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 Article 35 A- OVER-PRIVILEGED?

ACKNOWLEDGEMENT

The researcher takes this opportunity to express their profound gratitude and deep

regards to her guide Prof. K.L. Bhatia for his exemplary guidance, monitoring and

constant encouragement throughout the course of this thesis. The blessing, help and

guidance given by him time to time shall carry the researchers a long way in the

journey of life on which the researcher is about to embark. Lastly, the researcher

would like to thank almighty, her parents, friends for their constant encouragement

without which this assignment would not be possible.

THANK YOU,

KUMAR ABHISHEK

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 Article 35 A- OVER-PRIVILEGED?

DECLARATION

I hereby declare that the work reported in the Project Report entitled “ARTICLE 35
A– OVER-PRIVILEGED?” submitted at Chanakya National Law University, Patna
is an authentic record of our work carried under the supervision of Prof. K.L. Bhatia.
I have not submitted this work elsewhere for any other degree or diploma.I am fully
responsible for the contents of our project report.

KUMAR ABHISHEK

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

APRIL, 2018

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 Article 35 A- OVER-PRIVILEGED?

Introduction
The debate with respect to the constitutionality of Article 35A started after an NGO ‘We The
Citizens’ filed a petition in the Supreme Court in 2014, saying the provision was only supposed
to be a temporary one. It is imperative that we delve into the legislative history of this provision
in order to make any meaningful argument. Article 35A of the constitution empowers J&K
legislature to define state’s “permanent residents” and their special rights and privileges. It was
added to the constitution through a presidential order of 1954 with the then J&K government’s
concurrence. There is an argument projected that the President has no powers to amend the
Constitution. The fact of the matter is Article 35A is not part of the Constitution of India. It’s a
part of the Constitution only applicable to J&K. Article 35A is the sole provision in the IC which
neither discuss in the Constituent Assembly nor in the Parliament. This Article came into
existence by a Presidential Order passed by Dr. Rajendra Prasad on the advice of Nehru’s cabinet
in 1954 “The Constitution (Application to Jammu and Kashmir) Order, 1954”. This Article states
about the rights and privileges of the permanent resident of the Jammu and Kashmir which
exclude any person from all State’s benefits who is not the permanent resident of the State. This
special treatment is with respect to ‘employment with the state government, acquisition of
immovable property in the state, settlement in the state, or right to scholarships and such other
forms of aid as the state government may provide.

I. Aims and Objectives

Researcher intends to find out the following-

 What is the significance of Article 35A?

 What are the issues regarding Article 35A
 Is Article 35A constitutionally unconstitutional?
 What are implications of abrogation of Article 35A?

II. Research Methodology

Researcher has used doctrinal method of research.

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 Article 35 A- OVER-PRIVILEGED?

CHAPTER 1- INTRODUCTION

Article 35A of the Indian Constitution is an article that empowers the Jammu and Kashmir state's
legislature to define “permanent residents” of the state and provide special rights and privileges
to those permanent residents.12 It was added to the Constitution through a Presidential Order, i.e.,
The Constitution (Application to Jammu and Kashmir) Order, 1954 - issued by the President of
India on 14 May 1954, "in exercise of the powers conferred by" clause (1) of Article 370 of the
Constitution, with the concurrence of the Government of the State of Jammu and Kashmir.3

The Indian Constitution protects certain sections of the society which have faced injustice
historically. In the similar vein, the Constitution protects certain States to immune from the
Constitution under Part XXI titled “Temporary, Transitional and Special provisions” from
Article 369 to 392. In this Part, the IC provides temporary provisos to the state of Jammu and
Kashmir (Art 370).

It was added to the constitution through a presidential order of 1954 with the then J&K
government’s concurrence. The Article 35A yields special rights and immunities to the
permanent residents of the Jammu and Kashmir from the rest of Indian citizen. In the light of this
article a non-permanent resident of Jammu and Kashmir cannot enjoy any Government facilities.

The recent debate over the validity of Article 35A of the Constitution is nothing less than a break
from the past. The only provision which acknowledges the amendment in the Constitution is
Article 368. However, Article 35A was not brought by an amendment under Article 368, it was
added to the Constitution by way of a Presidential Order passed under Article 370 of the
Constitution. Article 35A of the constitution empowers J&K legislature to define state’s
“permanent residents” and their special rights and privileges.

1
http://lexhindustan.com/%E2%80%8Borigin-of-jammu-nd-kashmir-analysis-of-article-370-in-present-scenario/
accessed on 17 April 2018 at 5:00 pm
2
‘If Article 35A goes, all Presidential Orders from 1950-75 will go’
http://www.greaterkashmir.com/news/interviews/-if-article-35a-goes-all-presidential-orders-from-1950-75-will-
go/196811.html
3
The Constitution (Application to Jammu and Kashmir) Order, 1954

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Article 35A of the Constitution of India enables Jammu and Kashmir to make a distinction
between permanent and non-permanent residents in relation to acquisition of immovable
property, settlement in the state and employment, among others.

The text of Article 35A reads as follows:

“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.”4

4
The Constitutional Status Of Article 35A, Deepak Kumar, Live Law.in, (19 th April, 2018, 02: 45 pm),
www.livelaw.in

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CHAPTER 2- ORIGIN AND SIGNIFICANCE OF 35A.

2.1. ORIGIN

Article 35 A was a product of the Delhi Agreement which enables the state legislature to define
“permanent residents” and provide them with special privileges and also protects such laws from
being held as void on the ground that they are inconsistent with or restrict or abridge any rights
conferred on the other citizens of India by any provision of Part III of the Constitution.

The Delhi Agreement states:

 The Government of India agreed that while the residuary powers of legislature vested in
the Centre in respect of all States other than Jammu and Kashmir, in the case of the latter,
they vested in the State itself.
 It was agreed that persons domiciled in Jammu and Kashmir shall be regarded as citizens
of India, but the State Legislature was empowered to make laws for conferring special
rights and privileges on the State’s subjects.
 The Union Government agreed that the State should have its own flag in addition to the
Union flag, but it was agreed by the State Government that the State flag would not be a
rival of the Union flag.
 The Sadar-i-Riyasat, equivalent to the Governor of other States, will be elected by the
State Legislature itself instead of being nominated by the Union government and the
President of India.
 With regard to the jurisdiction of the Supreme Court of India, it was accepted that for the
time being, owing to the existence of the Board of Judicial Advisers in the State, the
Supreme Court should have only appellate jurisdiction.

2.2. SIGNIFICANCE OF ARTICLE 35 A

The implementation of these provisions leads to creation of two classes of citizens in the Union
of India. One class has special access in Jammu and Kashmir and the other doesn’t. This is
something which goes against Article 14 of the Constitution, which says that the state shall not
discriminate amongst its citizens on the basis of their gender, caste, creed, religion or the place of

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birth. It further says that the state cannot refuse equality before the law and equal protection of
the laws to any person within the territory of India. This means that no person or groups of
people can demand for any special privileges. Most importantly, Article 14 refers to ‘persons’
and not ‘citizens’.5 Therefore, it is not even necessary for a person to be a citizen of India to
invoke the right under Article 14.

5
Article 35A & Kashmir, Project WikiIAS, IAS4Sure, (20 April, 2018, 02:30 pm), www.ias4sure.com

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CHAPTER 3 - ARTICLE 35A: CREATING CLOUDS OF DOUBT ABOUT

FUNDAMENTAL RIGHT IN THE STATE OF JAMMU & KASHMIR

The aftermath of Article 35A is such that the State of Jammu & Kashmir has formed laws which
are gender discriminatory in nature. For e.g. if a man marries a woman who is not from Jammu
& Kashmir, she automatically after such a marriage becomes a permanent resident of Jammu &
Kashmir whereas if a woman marries a man who is not from Jammu & Kashmir she loses the
status of permanent resident. This arbitrary law cannot be challenged as violative of Article 14
because of the protection under Article 35A as mentioned above. The special rights granted to a
permanent resident are, employment under the State Government, acquisition of immovable
property, settlement in the State and right to scholarship and such other forms of aid as the State
Government may provide. So, if a woman from Kashmir marries a man who is not from Jammu
and Kashmir or not a permanent resident of Jammu & Kashmir, she will be deprived of all the
special rights under Article 35A.

In the recent petition filed by Charu Wali Khanna before the Supreme Court, she rightly argues,
that she can work or own a house/property in any part of the world except in the State where her
roots lie. The word “with such exceptions and modifications” used in clause 1 of Article 370
cannot be given such wide interpretation in order to make it capable of adding a provision in the
Constitution more so when this is an executive power. The scope and extent of the Judicial
Review on the Executive Power has already been decided by the apex court of this country in
several landmark judgments. Though, it is suggested that the Constitutional validity of the 1954
Order has already been tested by the Constitution Bench of the Supreme Court not once but
twice.

Initially, in Puranlal Lakhanpal v. President of India & Ors.,6, the question was whether the
President can change the method of electing the members of the House of People from the State
of Jammu & Kashmir by way of an indirect election instead of direct election. The Court

6
Puranlal Lakhanpal v. President of India & Ors., (1962) 1 SCR 688

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answered in the affirmative and held that the change in the method of election is only a
modification.

The second challenge to the Presidential Order, 1954 was in Sampat Prakash v. State of Jammu
& Kashmir and Anr.,7 where the issues raised were of greater constitutional importance such as
the applicability of Article 370 was temporary; that the President in the guise of modification
cannot add a provision in the Constitution; and once Article 368 is made applicable to the State
of Jammu & Kashmir, the power of President to amend the Constitution under Article 370 does
not exist. Although, these arguments were not accepted by the Constitution Bench headed by the
Chief Justice Hidayatullah. But it has been 48 years ever since and the present Petitions filed in
the Hon’ble Supreme Court are from the people who claim themselves to be Kashmiri. It is
perhaps the right time when the Supreme Court should intervene in order to safeguard the
Fudamental Rights of the people of Jammu & Kashmir. It is also apt because in our country, it
has been an age old tradition that many political problems have been solved by the Judiciary
and triple talaq is a recent example which is a big step towards our old dream of Uniform Civil
Code in the independent India.

Nevertheless, the Supreme Court will also have to face the challenges before it. If the Court
holds that Article 370 does not grant powers to the President to amend the Constitution, it would
consequently make a large portion of the 1954 Order unconstitutional which is a notable change
in position of law existing from the last 60 years. The Court might have to resort to prospective
overruling devised by Justice Subba Rao in Golaknath’s case.8

7
Sampat Prakash v. State of Jammu & Kashmir and Anr., (1969) 2 SCR 365
8
I. C. Golaknath & Ors vs State Of Punjab & Anrs 1967 AIR 1643

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2.1.STATUS OF THE PERMANENT RESIDENTS OF KASHMIR

KOSHURS- THE PEOPLE OF KASHMIR

The people of Jammu and Kashmir, better known as Koshurs, are also referred to as Mulkis,
State Subjects or Permanent Residents. They enjoy a special status within the Indian Union
compared to the residents of the other States. This special status acts as a legal and social barrier
between the people of the State of Jammu and Kashmir and the people of the rest of India. The
division between the people of the State of Jammu and Kashmir and the rest of India is artificial
and since time immemorial the State of Jammu and Kashmir been considered to be an integral
part of India. It has been said that the

"Country which lies to the South of the Himalayas and North to the Ocean is called Bharat
and the Bharatiyas are the people of this country".9

Therefore it is clear that both historically and geographically Kashmir was and is a part of
India and the people of Kashmir were no doubt Bharatiyas or Indians.

2.2.DUAL CITIZENSHIP IN CASE OF THE PERMANENT RESIDENTS

The Citizenship of India (Article 5), and birth or residence in a particular State does not confer
any separate status as a citizen of that State.10 The concept of dual citizenship is neither
honoured under the Articles of the Constitution, nor under the Citizenship Act 1955 nor under
any of the provisions of the Indian Laws.11

It has been held in K. L. Modi v. Union of India12 that dual citizenship does not seem possible
under Indian laws. In Indra Sawhany's case, a Constitution Bench of the Apex Court observed

9
Translated from the Vishnupurana Ch. 3-1 4 The Constitutional Law of Great Britain and the Commonwealth-
Page 785 - 0. Hood Phillips
10
Constitutional Autonomy- A Case Study of J & K- page 35- Dr. K. K. Wadhwa.
11
Law of Citizenship, Foreigners and Passports - Third edition - Page 7 4 - V. K. Dewan.
12
K. L. Modi v. Union of India AIR 1970 Delhi 76

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that, 'India has one common citizenship and every citizen should feel that he is Indian first
irrespective of any other basis' .13

However in the case of the permanent residents of the State of Jammu and Kashmir an exception
to India's concept of single citizenship has been created. Part II of the Constitution of India
dealing with Citizenship was not made applicable to Jammu and Kashmir State.14 By this unique
position, an important but very controversial exception has been made through the Constitution
of India for the permanent residents of the State of Jammu and Kashmir.15 It has been pointed out
that the citizens of lndia are not ipso-facto the citizen of Jammu and Kashmir.16

The theory that the permanent residents of the State of Jammu and Kashmir enjoy dual
citizenship has been refuted with the logic that Part III of the Constitution of Jammu and
Kashmir 1957 abolishes the separate citizenship of the State17 and no longer have the residents of
Jammu and Kashmir a separate citizenship distinct from Indian Citizenship.18 The Indian
citizenship Act 195519 also extends to the State of Jammu and Kashmir.

2.3.RIGHTS OF THE PERMANENT RESIDENTS AFTER ACCESSION

Even after accession the permanent residents of the State of Jammu and Kashmir continued to
enjoy various rights and privileges. The Constitution (Application to Jammu and Kashmir)
Order, 195020, issued by the President of India, mainly dealt with the items specified in the
Instrument of Accession. Under the said Order, Part III of the Constitution of India, 1950,
dealing with Fundamental Rights was not made applicable to the Permanent Residents of the
State of Jammu and Kashmir. Though the people of Kashmir were deprived of the fundamental
rights, enjoyed by the citizens of India, the permanent residents of the State of Jammu and

13
Indra Sawhany v Union oflndia, AIR 1993 SC 477
14
The Constitution of Jammu and Kashmir- Its Development and Comments- Third Edition - Page 208 - A. S.
Anand
15
Constitutional Autonomy- A Case Study of 1 & K- page 35 -Dr. K. K. Wadhwa.
16
Ibid.
17
Part III of the Constitution of Jammu and Kashmir 1957
18
Supra note 14.
19
Indian Citizenship Act I955 (Act 57 of I955)
20
Later repealed by the Order of 1954 dated 14th May 1954

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Kashmir continued to enjoy certain fundamental rights subject to certain modifications and
exceptions to them under the State Subject Act 1927 read with Notification of 1932.21

The Constitution of Jammu and Kashmir Act 1939 (Act XIV of 1996) also did not provide for
fundamental rights and legally speaking the people of the State virtually had no fundamental
rights at all. Some provisions of Part III of the Constitution of India 1950 were made applicable
to the State in 1952 by the signing of the Delhi Agreement.

21
Notification No. I-L/84, dated 20th April I 927 read with State Notification No. 13/L, dated 2th June 1932.

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2.4.APPLICABILITY OF FUNDAMENTAL RIGHTS TO THE PERMANENT

RESIDENTS

The Constitution (Application to Jammu and Kashmir) Order 1954 came into force on 14th May
1954. The Order of 195422 made Part II of the Constitution of India dealing with Citizenship and
Part III of the Constitution of India dealing with Fundamental Rights applicable to the State of
Jammu and Kashmir. However, the State legislature would have power to make special
provisions for the permanent residents of the State and for that purpose Section 2(4)0) of the
Order of 1954 inserted Article 35A in the Constitution of India 1950.

Discriminatory and special rights as regards employment, acquisition of property and settlement
have been conferred on permanent residents of the State by inserting new Article 35A in the
Constitution.23

Though fundamental rights were made applicable to the permanent residents of the State there
are some exceptions and variations to their applicability. As there are no Schedule Tribes in the
State of Jammu and Kashmir, Article 15(4), to that extent has no application in the State of
Jammu and Kashmir. Article 1624 dealing with equality of opportunity in matters of public
employment also applies to the State of Jammu and Kashmir with the exception of clause (3).

Article 19 of the Constitution of India 1950, applies to the permanent residents of the State of
Jammu and Kashmir with the primary difference that in the case of the permanent residents, the
freedoms of assembly, association, movement, residence and property shall be subject to an
additional ground of restriction, being the 'Security of State'.

Article 22,25 dealing with protection against detention in certain cases applies to the State of
Jammu and Kashmir with the exception that the power of legislation with regards to preventive
detention shall belong to the State Legislature and not Parliament.

22
Supra note 9
23
The Dilemma of Article 370-96 CWN 93
24
Constitution of India 1950
25
Constitution of India 1950

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However it is interesting to note that the fundamental rights guaranteed under Part III of the
Constitution of India 1950, are further subject to Article 35A of the Constitution of India 1950.
By virtue of Article 35A, legislation of the State that is inconsistent with the fundamental rights
guaranteed under the Indian Constitution shall be valid, in case of discrimination on grounds of
place of birth, equality of opportunity for employment, right to acquire, hold and dispose of
property, and the right to reside and settle in any part of the territory of India. This special
treatment for Kashmiris seems to be a violation of the generally accepted principle of 'equality
before of law,' as permanent residents of Kashmir and citizens of India in the same sense as any
person belonging to any other State of India.

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CHAPTER 4 - ARTICLE 35 A OVER-PRIVILEGED?

4.2. Power of Parliament to Amend the Article 35A

Article 368 is the only way to amend the Constitution, not the President. The marginal note of
Article 368 states “Power of the Parliament to amend the Constitution and procedure, therefore”
which means it is the Parliament that has the power to amend the constitution. Sub-clause 1 of
Article 368 states that:

“… Parliament may in exercise of its constituent power amend by way of addition, variation or
repeal any provision of this Constitution in accordance with the procedure laid down in this
article”

Even a bare perusal devoid of expertise will lead to a logical conclusion that Article 368(1), has
in express terms, provided the manner in which the amendment can be made and the power of
such amendment lies with the Parliament alone.

The constitutionality of Article 35A and Presidential Order 1954 has been summarized by my
learned Professor KL Bhatia in following words:

The sole object of this new added Article 35A by the Presidential CO 1954 is to provide special
rights and privileges to the permanent residents of Jammu Kashmir being citizens of India vis-à-
vis the citizens of India, viz, the employment in the State Government; acquisition of immovable
property; settlement in the State; or scholarships and other forms of aid as per the discretion of
State Government.”26

26
Retrieved from http://www.livelaw.in/constitutional-status-article-35a/. accessed on 20 April 2018 at 1:45am

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4.3. Article 35A and Violation of Fundamental Rights

There is no substantial difference which distinguishes between the two class of citizens (citizens
of India and permanent residents of the State who themselves are citizens of India) and thus no
question arises of them bearing a just and rational relation to the object sought to be achieved as
is required by Article 14.27 In arguendo, even if there was a purpose at the time of its
incorporation (the peculiar circumstances preceding the integration of Jammu Kashmir as
integral part of India), that has been achieved as is evident from the language of the Constitution
of State of Jammu Kashmir itself which provides that the Constitution exists only to define the
existing relation of the State as an integral part of India.

In a multitude of cases, Supreme Court has assumed the role of sentinel on the qui vive with
reference to Fundamental Rights. Furthermore, Article 32 which provides the power to approach
the Supreme Court directly in case of violation of fundamental rights has been deemed to be the
“heart and soul” of Indian Constitution by Dr. BR Ambedkar. But the existence of Article 35A,
authors submit, smacks of both audacity and absurdity as it takes away those rights and entitles
the State government with carte blanche when it provides that

“no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by
the Legislature of the State … shall be void on the ground that it is inconsistent with or takes
away or abridges the other citizens of India by any provision of this part.”

But Supreme Court has correctly held that

“Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the
object of which is to protect basic features of the Constitution as indicated by the synoptic view
of the rights in Part III.”28

The provision contained in Article 35A is in direct conflict with the above cited judgment.

27
State of Kerala vs. NM Thomas, (1976) 2 SCC 310.
28
IR Coelho vs. State of Tamil Nadu, (2007) 2 SCC 1.

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CHAPTER 5 - CONCLUSION

The debate with respect to the constitutionality of Article 35A started after an NGO ‘We The
Citizens’ filed a petition in the Supreme Court in 2014, saying the provision was only supposed
to be a temporary one. It is imperative that we delve into the legislative history of this provision
in order to make any meaningful argument. Article 35A of the constitution empowers J&K
legislature to define state’s “permanent residents” and their special rights and privileges. It was
added to the constitution through a presidential order of 1954 with the then J&K government’s
concurrence. There is an argument projected that the President has no powers to amend the
Constitution. The fact of the matter is Article 35A is not part of the Constitution of India. It’s a
part of the Constitution only applicable to J&K. Article 35A is the sole provision in the IC which
neither discuss in the Constituent Assembly nor in the Parliament. This Article came into
existence by a Presidential Order passed by Dr. Rajendra Prasad on the advice of Nehru’s cabinet
in 1954 “The Constitution (Application to Jammu and Kashmir) Order, 1954”. This Article states
about the rights and privileges of the permanent resident of the Jammu and Kashmir which
exclude any person from all State’s benefits who is not the permanent resident of the State. This
special treatment is with respect to ‘employment with the state government, acquisition of
immovable property in the state, settlement in the state, or right to scholarships and such other
forms of aid as the state government may provide.

The language of Article 35A suggests the politically motivated nature of the provision. In the
garb of being essential to the autonomy of the State of Jammu Kashmir, it is depriving the
citizens of India vis-à-vis the citizens of India who are permanently residing in the State of
Jammu Kashmir. The implementation of these provisions leads to creation of two classes of
citizens in the Union of India. One class has special access in Jammu and Kashmir and the other
doesn’t. This is something which goes against Article 14 of the Constitution, which says that the
state shall not discriminate amongst its citizens on the basis of their gender, caste, creed, religion
or the place of birth. It further says that the state cannot refuse equality before the law and equal
protection of the laws to any person within the territory of India. This means that no person or
groups of people can demand for any special privileges. Most importantly, Article 14 refers to
‘persons’ and not ‘citizens’. Therefore, it is not even necessary for a person to be a citizen of
India to invoke the right under Article 14.

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The Supreme Court has said on numerous occasions that the fundamental rights are the most
sacrosanct part of our Constitution and can’t be violated under any circumstances. Fundamental
rights are also part of the basic structure of the Indian Constitution, which cannot be amended at
all as the apex court has stated. The amendments to the Constitution cannot even be made
through Article 368. But, Article 35A is in direct violation of Article 14.

The Union government has rightly parted ways with the state government in front of the
Supreme Court. The Centre expressed its reservations in responding to the NGO’s petition before
the apex court. This means that if Article 35A is struck down, there will be more legal parity
between a citizen of India in Jammu and Kashmir and a citizen of India in any other state. Even
from a political point, the existence of such special legal provisions for Jammu and Kashmir is
indirectly an acknowledgment in front of the international community that the state is a disputed
territory and therefore, it has a special status within the country.

Therefore, it is high time that the Supreme Court takes cognizance of this matter. The enactment
in the first place was nothing but political appeasement and opportunism, which was done in an
extra constitutional manner through an illegal process. The NGO’s petition is a welcome
opportunity to declare Article 35A ultra vires.

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BIBLIOGRAPHY

ACTS AND STATUTES:

 Indian Citizenship Act I955 (Act 57 of I955)

 The Constitution (Application to Jammu and Kashmir) Order, 1950
 Constitution of Jammu and Kashmir 1957
 Constitution Of India 1950

CASES:

 State of Kerala vs. NM Thomas, (1976) 2 SCC 310.

 Puranlal Lakhanpal vs. The President of India, AIR 1961 SC 1519.
 I. C. Golaknath & Ors vs State Of Punjab & Anrs 1967 AIR 1643
 K. L. Modi v. Union of India AIR 1970 Delhi 76
 Indra Sawhany v Union oflndia, AIR 1993 SC 477
 IR Coelho vs. State of Tamil Nadu, (2007) 2 SCC 1.
 Sampat Prakash v. State of Jammu & Kashmir and Anr., (1969) 2 SCR 365

BOOKS

 The Constitutional Law of Great Britain and the Commonwealth- Page 785 - 0. Hood
Phillips
 Constitutional Autonomy- A Case Study of J & K- page 35- Dr. K. K. Wadhwa.

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 Law of Citizenship, Foreigners and Passports - Third edition - Page 7 4 - V. K. Dewan.

 The Constitution of Jammu and Kashmir- Its Development and Comments- Third Edition
- Page 208 - A. S. Anand

WEBSITE:

 Article 35A & Kashmir, Project WikiIAS, IAS4Sure, (20 April, 2018, 02:30 pm),
www.ias4sure.com

 https://timesofindia.indiatimes.com/india/article-35a-and-its-
significance/articleshow/59968712.cms
 The Constitutional Status Of Article 35A from
http://www.livelaw.in/constitutional-status-article-35a/.

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