Debate

Criticism
In July 2015, an RSS-backed think-tank called the
Jammu & Kashmir Study Centre first came up with
the idea to challenge Article 35A in the Supreme
Court. A petition was filed in the Delhi High Court
against the Article.[14][15] Later, it was also challenged
in the Supreme Court.[16]
The legality issues pointed are:
1. Article 35A was not added to the Constitution by
following the procedure prescribed for
amendment of the Constitution of India under
Article 368. Article 370 does not anywhere
confer on the President legislative or executive
powers so vast that he can amend the
Constitution or perform the function of
Parliament. It has been brought about by the
executive organ when actually the right of
amendment of the Constitution lies with the
legislative organ. Therefore, it is, allegedly, ultra
vires the basic structure of the Constitution
since it violates the Constitutional procedures
established by law.[17]
2. Besides carrying out many modifications and
changes, this order 'added' a new "Article 35A"
to the Constitution of India. Addition or deletion
 of an Article amounted to an amendment to the
Constitution which could be done only by
Parliament as per procedure laid down in Article
368. But, Article 35A was never presented
before Parliament. This meant the President
had bypassed Parliament in this order
to add Article 35A.[14]
3. The PRC classification created by Article 35A

suffers from the violation of Article 14, Equality

before the Law. The non-resident Indian citizens
cannot have the rights and privileges, same as
permanent residents of Jammu and Kashmir.[17]
4. This also meant that the amending power of

Parliament under Article 368 of the Constitution

itself was abridged in its application to Jammu
and Kashmir, another amendment, without any
reference to Parliament. When the President of
India does not have legislative powers, he
performed the function of Parliament.[14]
The main objections raised are:
1. It facilitates the violation of the right of women to
‘marry a man of their choice’ by not giving the
heirs any right to property, if the woman marries
a man not holding PRC. Therefore, her children
are not given Permanent Resident Certificate
and thereby considering them unfit for
inheritance – not given any right to such a
 woman’s property even if she is a permanent
resident.[18][19]
2. 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). And even after six
decades of service in the state, their children
are safai-karmacharis and they have been
denied the right to quit scavenging and choose
any other profession.[14][20][21]
3. The industrial sector & whole private sector
suffers due to the property ownership
restrictions. Good doctors don't come to the
state for the same reason.[14]
4. Children of non-state subjects do not get
admission to state colleges.[14]
5. It ruins the status of West Pakistani refugees.
Being citizens of India they are not stateless
persons, but being non-permanent residents of
Jammu and Kashmir, they cannot enjoy the
 basic rights and privileges as being enjoyed by
permanent residents of Jammu and Kashmir.[17]
6. 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.
[22]

Support
According to constitutional expert A G Noorani, all
the legal arguments against the article are
groundless, and are raised with "communal-minded
majoritarian" intentions. He refers to the various
Articles in the Constitution, that similarly provide
special rights to other Indian states like Nagaland
(Article 371A) and Mizoram (Article 371G) and notes
that there are various provisions in the Indian
Constitution which confer "special status" to several
other states also, in varying degrees based on
historical reasons, and remarks that no objections
were raised on them. Since Article 370 was enacted
on 26 November 1949 as part of the Constitution of
India by the Constituent Assembly of India which
was a sovereign body, he remarks, Article 35A
"flows inexorably" from it. He recalls the Sheikh
Abdullah's report to Kashmir’s Constituent
Assembly on 11 August 1952, which said, “it was
agreed that 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 acquisition of immovable property,
appointments to services and like matters. There are
historic reasons which necessitate such
constitutional safeguards as for centuries past, the
people of the State have been victims of exploitation
at the hands of their well-to-do neighbours."[8]
Article 35 A protects the demographic status of the
Jammu and Kashmir state in its prescribed
constitutional form. Scholar Srinath
Raghavan states, Kashmiris are apprehensive that
any move to abrogate Article 35A would open the
gates for a demographic transformation of the valley,
an objective advanced by the Sangh Parivargroups
as an ideal solution to the Kashmir issue. He further
says that the state's autonomy has been gradually
eroded by various governments of Delhi through
misuse of the provisions of Article 370, and remarks:
"Kashmiris have come to regard the rights of
permanent settlement as the only remaining piece of
any meaningful autonomy." Former Chief Minister of
Jammu and Kashmir, Mufti Mohammad Sayeed,
while speaking about the issue of West Pakistani
refugees, has said, "before we do anything on this,
we need to allay genuine fears that there is an
attempt to change the demographics of the state.”[12]
[23]

Noorani also points to the observations made by

the High Court of Jammu & Kashmir in this regard,
while delivering a judgement on 16 July 2015:[8][24]
"The Parliament has no power to legislate law about
the subject's administration of justice, the land & the
other immovable properties. [...]
Article 35(A) of the Constitution of India, which has
been applied to the State of Jammu and Kashmir,
not only recognizes but clarifies the already existing
constitutional and legal position and does not extend
something new to state of Jammu and Kashmir. This
article, on its own, does not give anything new to the
State of Jammu and Kashmir. Article 14 of the
Constitution of India, as has been made applicable
to the State of Jammu and Kashmir, thus, gave
equal protection of laws to the State
subjects/citizens as a class apart. Similarly, article
19(1)(f) of the Constitution of India, which has been
made applicable to the State of Jammu and Kashmir
and till date continues to be in force in the State,
recognizes the right to own, hold and dispose of
property, which right otherwise is inherent in the
State subjects/citizens of the State of Jammu and
Kashmir, who stand defined in terms of
Elans/Orders of His Highness and the Constitution
of Jammu and Kashmir.
Laws have their own universe. They operate in
matter and not in vacuum. The laws are located in
time and space. In the State of Jammu and Kashmir,
the immovable property of a State subject/citizen,
cannot be permitted to be transferred to a non State
subject. This legal and constitutional protection is
inherent in the State subjects of the State of Jammu
and Kashmir and this fundamental and basic
inherent right cannot be taken away in view of
peculiar and special constitutional position occupied
by State of Jammu and Kashmir. Article 35-A is
clarificatory provision to clear the issue of
constitutional position obtaining in rest of country in
contrast to State of Jammu and Kashmir. This
provision clears the constitutional relationship
between people of rest of country with people of
Jammu and Kashmir."