Article-35A

Jammu and Kashmir has always held a significant place in the county's political discourse. The
provisions under Article 370 guaranteeing a special status to J&K has been abrogated. The
Central Government through
Now, the current status being that Constitution of India also applies to the newly created union
territories of J&K and Laddakh. All the laws of Union of India are applicable to these union
territories.
What is Article 35-A?
Article 35-A was brought by the President of India Dr. Rajendra Parasd through a Presidential
Order named The Constitution (Application to Jammu and Kashmir) Order, on May 14, 1954
after the consultation of the then Prime Minister Pd. Jawahar Lal Nehru. The Article empowers
the state government of Jammu and Kashmir to define the term “permanent residents” of the
state. The PRC (Permanent Resident Certificate) holders have the right to vote in local,
municipal and state elections while the non-PRC can only vote in the Loksabha Elections. The
permanent residents have the right to property, admission to government-run technical
education institutions; scholarships and other social benefits, right to join central services. Thus,
it discriminates against the rest of the Indian citizens. All the above-mentioned rights to various
communities like the Scheduled Caste Valmikis from Punjab, West Pakistan Refugees, Gorkhas,
Women living in Jammu-Kashmir for the past six decades have been denied by the virtue of
Article 35A. But because of the scrapping of Article 370, Article 35A has become toothless.
Presently, there seems to be no significance of Article 35A.
Another pertinent thing to note about Article 35A is that it was never brought on the floor of
any of the two houses i.e. neither in the House of People nor in the House of Commons. It did
not follow the requisite procedure of amendment laid under Article 368 of the Constitution of
India. It appears in the appendix II of the Constitution.
The plight of the Valmikis, Gorkhas and the women of Jammu and Kashmir
About 200 families of Punjab were brought from Punjab to J&K specifically to be employed as
‘safai karamcharis'. They were told that the conditions of being a permanent residents of J&K
would be loosen for them on the condition that they would work as ‘safai workers'. However,
the promise came out to be a hoax as they still continue to work as safari karamchari’s. Their
citizenship is limited only for being a worker. Their graduate children could not apply for
government jobs. The educated youth can only be employed as safai karamchari’s making the
job hereditary.
The Gorkhas were a part of the army of Maharaja Ranjeet Singh and Maharaja Gulab Singh.
Their families settled in Jammu & Kashmir more than 200 years ago but still they have not been
made part of the ‘permanent residents'. They have been kept out on some illogical grounds.
The situation of women was more dreary. They are having PRC but are denied equality. The
scenario was that if a Kashmiri woman marries a man of outside J&K, she will loose her
property rights in the state. However, the same was declared invalid by the J&K High Court in
the case of Jammu & Kashmir v. Dr. Sushila Swahney and ors., where the court declared such
women would not lose their property rights. But one thing which still remained a problem was
that such women cannot transfer her property to her children. This is not the case with the men
in the valley. They do not have to follow any such restrictions.
These issues seem to be resolved after the scrapping of Article 370 of the Constitution of India.
These issues are at prima facie discriminatory and in contravention with the fundamental rights
mentioned under Part III of the Constitution of India.
A Brief History
On attaining independence, British India was divided into two dominions i.e. India and Pakistan.
Maharaja Hari Singh, on 26th October 1947, signed the Instrument of Accession with India
which gave Indian Parliament the power to dal in three areas. They were defence,
communication and external affairs. Though the State's accession was done in accordance with
the provisions of the Government of India Act 1935 and the Indian Independence Act 1947, the
future of the State of Jammu and Kashmir was once again decided without paying any heed to
the hopes and aspirations of the people of the State.1
Maharaja Hari Singh issued a Private Secretary’s Circular Order No. PS-2354 on January 31,
1927 to define a ‘Hereditary State Subject’ to include “all persons born and residing within the
State before the commencement of the reign of His Highness the Late Maharaja Gulab Singh
Sahib Bahadur and also persons who settled therein before the commencement of Samvat
1942 and have since been permanently residing therein.” It had the effect of giving the
authorities this power of appointment provided it was certified that he should in fact be made a
state subject post the due enquiries.2 The Notification I-L/84 of April 20, 1927 replaced this
earlier circular and introduced categories of state subjects. 3 Later the Delhi agreement was
signed leading to the inclusion of Article 370 in the Constitution of India. Only articles 1 and 370
were made applicable to the State of Jammu and Kashmir.
Abrogation of Article 370
Under the Presidential Order thorough Article 370, the Jammu and Kashmir Reorganization Bill,
2019 was introduced by Home Minister Amit Shah which got assent from both the houses and
the bill was passed. Three major changes took place by the passing of this Act.
1. The State of J&K was divided into two union territories of J&K and Laddakh. J&K would
be a union territory having a legislature.
1
. Sodhganga
2
. Dushyant Kishan Kaul, Evaluating the status of Article 35A of the Constitution of India, V INDIAN CONSITUTIONAL
LAW REVIEW, 2018.
3
. ibid.
 2. The entire Constitution of India has been made applicable to the J&K and Laddakh.
3. The state assembly instead of the constituent assembly has been made the competent
body to advice the President in order to make Article 370 inoperative.
The reasons given for such action was that because of Article 370 and Article 35 A, the
development of J&K was not taking place and the state was in turmoil. The incidents of unrest,
stone pelting by the youth, day to day tussle between the civilians and the army personnel
were some major reasons. The impending civilian unrest, prospects of renewed insurgency and
Pakistan-sponsored asymmetrical warfare ended India‘s hopes of returning stability to Kashmir
which causes India‘s move towards the abrogation of article 370.4
Effects of Abrogation of article 370
1) After abrogation the citizens of J&K will not have any special rights as they used to enjoy
earlier. They will have similar rights as to all other Indian Citizens.
2) After the reorganization any person can buy immovable property in the state of Jammu and
Kashmir. They can migrate and can permanently reside in the state.
3) People of Jammu and Kashmir would now have to waive off their dual citizenship.
4) Women need not to give away their immoveable property after marrying to non-Kashmiri
and can also transfer her property to her children according to the laws.
5) Financial Emergency can be made applicable through Article 360.
6) 16% reservation will be given to minorities of the residents living there. 5
7) There shall be no separate flag for the union territory of Jammu and Kashmir. All people will
have voting rights and elections will take place according to the rules applicable to whole of the
country.
8) All earlier laws which were not applicable to J&K will be now enforceable.
9) The Central government will now have complete autonomy over the control of police and
law and order situation in the valley.
10. J&K would now have President rule instead of Governor’s rule by the application of Article
356 of the Constitution of India.
12) All the provisions of the article 370 of Indian constitution are null and void except clause 1of
the article 370 of Indian constitution.6

4
. Rinashree Khonud, Abrogation of Article 370: A look back it’s origin and aftermath, 6 INTERNATIONAL JOURNWL
OF TECHNOLOGY AND SCIENTIFIC RESEARCH, 2019.
5
. Kashika Mahajan, Abrogation of Article 370, 8 INTERNATIONAL JOURNAL OF SCIENCE AND RESEARCH, 2019.
6
. ibid.
13) After the repeal of article 370, the total assembly seats would reduce to 83 because 4 seats
of Ladakh region would be slashed.7
Is abrogation of Article 370 constitutional?
This major political decision has been widely debated and has its constitutionality has been
challenged in the Supreme Court by Dr. Shah Faesal, ex IAS officer who was posted in the state
of J&K. Thoughts are sharply diverse on this particular issue.
Reasons for the unconstitutionality
This has been a debatable issue since the bill was passed. Various Constitutional experts such as
Subhash Kashyap said that the "constitutionally sound" and that "no legal and constitutional
fault can be found in it". However, another constitutional expert, AG Noorani, told BBC Hindi it
was "an illegal decision, akin to committing fraud" that could be challenged in the Supreme
Court.8
The President has to take concurrence of the government of the state according to the 2 nd
proviso of Article 370. Presently, there was no government in the state and Governor’s rule
was applicable. This particular order didn’t take the concurrence of the state government
meaning the “will of the people”. The President consulted the Governor who itself is appointed
by the Central Government. The non-concurrence of the government of the state is clearly in
contradiction with the proviso of Article 370 and could be termed as a “fraud on the
Constitution”.
This act of revoking Article 370 by the Union Government clearly violated the feature of
Federalism of the Constitution. In the case of State Bank of India v. Santosh Gupta, the court
held that the J&K is a quasi-federal structure of the Indian Constitution. 9 Shehla Rashid’s
petition in the Supreme Court argued that if Article 370(1)(d) is read with Article 368, the State
of Jammu and Kashmir is allowed to decide if the amendments made by the Constitution of
India will apply to it or not.10
The word ‘modification’ as mentioned under Article 370(3) has been wrongly interpreted by the
Parliament and it has transgressed its constitutional powers. In the landmark case of
Keshvananda Bharti v. Union of India11, the apex court held that no amending powers in the
constitution are absolute and unfettered, all are under limitation.
The Jammu & Kashmir Reorganization Act was unconstitutional because it violated the Doctrine
of Federalism. A well flourished state can’t be bifurcated into two union territories without
consulting the government of the state. Such a huge political decision involving a lot of stakes
7
. ibid.
8
. Rinashree, supra at 3585.
9
. Nilesh Chopra, Why is abrogation of Article 370 unconstitutional?, CENTER FOR CONSTITUTIONAL RESEARCH
AND DEVELOPMENT.
10
. ibid.
11
. (1973) 4 SCC 225.
should have been taken with due consideration to the nuanced and intricacies of the subject
matter.
The Parliamentary procedure for introducing a bill was also not followed. According to Rule 33
of the Rules of Procedure and Conduct of Business in Rajya Sabha, the committee must
specially allot a time to deliberate upon newly introduced bills. Because time for deliberation
was not allotted, the committee violated Rule 33. 12 Moreover, bills of such importance should
be placed under the List of Business. The Jammu and Kashmir Reorganization Bill was placed
under the Supplementary List.13 This clearly shows that the bill was brought in very secret
manner and was passed in haste and without proper discussion and debate.
The right to freedom of media was also violated as on 4 th August 2019 all internet and network
services were called off. There was complete shutdown and blackout. Information regarding
such important and significant political decisions which have a huge impact on the lives of the
common people was not made available to them. In the case of Indian Express Newspapers v.
Union of India14, the Hon’ble Supreme Court held “The purpose of the press is to advance the
public interest by publishing facts and opinions without which a democratic electorate cannot
make responsible judgements. Newspapers being surveyors of news and views having a bearing
on public administration very often carry material which would not be palatable to governments
and other authorities”. The Right to know and have information of people was violated as there
was complete internet shutdown. The Hon’ble Supreme Court in Dinesh Trivedi v. Union of
India held that the citizens have a right to know about the government decisions and actions.15
Reasons for its validity
Soli Sorabjee, the Former Attorney General of India argues that the act of the government was
within constitutional limits. In his own words “as far as the interpretation (as described in
Article 367) of certain clauses is concerned — that Constituent Assembly means the State
Assembly of Jammu and Kashmir and since Jammu and Kashmir is under President’s Rule, all
powers of State Assembly vests with Parliament — it is correct. To say that the President has
exceeded the confines of power to use Article 370 (1) (d) is also not correct since once he is
vested with the power and once he exercises it, that is the end of the matter.

There are questions whether such a crucial change can be carried out when Governor’s Rule is
in place and whether it is violative of the spirit of federalism. Remember that this is only an
interim measure. Elections will, of course, be held. One must not extrapolate and infer that the
Centre might now use the similar provision in other states. You can’t compare J&K with other

12
. ibid.
13
. ibid.
14
. (1985) 1 SCC 641.
15
. (1997) 4 SCC 306
states. Everything depends on the facts and circumstances prevailing in that particular state.
J&K can’t become a binding precedent for all the states for all times.” 16
There are also apprehensions that other states can also be converted into union territories.
However one needs to understand that all the other states are not having similar background as
that of J&K. They are not in need of any such change and therefore such apprehensions are
baseless.
Another pertinent thing to note is that the Article was temporary in nature. And therefore its
abrogation was necessary.
The way forward
The issue is debatable and controversial yet critical and significant. J&K has always been in
center of Indian politics. Issues that are related to it should be dealt with easiness and due time
should be allotted for discussion and debate. Although one cannot negate the fact that the
decision was taken in the spur of the moment which absolutely is a wrong practice, still if
positive results are achieved this haste would become less important. Political decisions that
have such wide amplitude and huge future implications requires engagement and involvement
of significant time and thought. Because what matters in the end is the outcome. I wish that the
future of the common masses of J&K is peaceful and promotes growth and development in the
state.

16
. Soli Sorabjee, Abrogating Article 370 is Constitutional: detaining leaders disturbing, Economic Times, last visited
on May 21st, 2020, 9:30 a.m.