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Article 35A
The Constitution (Application to Jammu and Kashmir) Order, 1954 was issued saying, that in exercise of
the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the
concurrence of the Government of the State of Jammu and Kashmir, is pleased to order … (j) After
article 35, the following new article shall be added, namely 35A.

The Text of the Article 35A:

"35 A. 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

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hereafter enacted by the Legislature of the State: (a) defining the classes of persons who are, or shall be,

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permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents

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any special rights and privileges or imposing upon other persons any restrictions as respects—

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(i) employment under the State Government;

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(ii) acquisition of immovable property in the State;

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(iii) settlement in the State; or

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(iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void

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on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other

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citizens of India by any provision of this Part.”

Background

When this Presidential Order was issued the Congress Party was ruling at the Center and Rajendra
Prasad was the President. Sheikh Abdullah of the party Jammu and Kashmir National Conference (JKNC)
was prime Minister of the state of Jammu and Kashmir. This article, without any discussion in the
Parliament, was introduced by the executive head of the biggest democracy of the world and the legal
experts think that this article is in violation with the United Nations Universal Declaration of Human
Rights 1948.

The critics of procedure of insertion

The insertion of this additional Article (Article 35A) is done in a way that it is not apparent to any lawyer
or law student who reads the Bare Act of the Constitution of India. This is because it is not included in
the text of the main document of provisions set out in Constitution of India. Experts conclude that
there are pure political reasons behind this procedure because it is not the standard way of inserting an
article in the Constitution.
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Article 35A was not added to the Constitution by following the procedure prescribed for amendment
of the Constitution of India under Article 368. Therefore, it is, allegedly, ultra vires the Constitution
since it violates the Constitutional procedures established by law.

1. It has been brought about by the executive organ when actually the right of amendment of
the Constitution lies with the legislative organ. Therefore, this Article violates the principle of
Separation of Power which is a basic feature based on which the Indian Democracy is run.
2. It violates the democratic principle on which the Indian nation was formed, in the following
way - The members of the legislature are elected representatives of the people. When any
Article is added to the Constitution it is done so by 2/3rd majority of both houses of the Union
Parliament present and voting in favor of such addition. These representatives are thereby
expressing the representative will of the people of the country. This democratic procedure was
violated in this case and the will of the people was not ascertained.

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3. When the bare text of the Constitution is read, wherever there is an addition of any Article or

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repeal or amendment to the provisions, a footnote is inserted to inform the reader by which

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Constitutional Amendment the change or modification was made. In this case, there was no

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Constitutional Amendment made as is the usual practice. Therefore, the power holders found it

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inconvenient to insert the Article 35 A into the bare text. The footnote would have to read

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Presidential Order and the reader would immediately question the validity of the procedure

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followed for its addition. So as to prevent many uncomfortable questions being asked, the best

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option was to prevent the addition of the Article into the Bare text, thereby concealing its

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illegality.
4. Even Article-368 of Constitution of India has been unconstitutionally amended in the said

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Presidential Order. So strangely the amendments made to Constitution have been concealed

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from general audit by not mentioning the same in the text of editions of main constitution and
the amendments have been mentioned in the Appendix-1 {Constitution ( (application to Jammu
and Kashmir ) Order 1954} and the Appendix-II ( Re- statement, with reference to the present
text of the Constitution, of the exceptions and modifications subject to which the Constitution
applies to the State of Jammu and Kashmir).

Some of the Injustices caused by Article 35A

1. It facilitates the violation of the basic 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
illegitimate – not given any right to such a woman’s property even if she is a permanent
Resident.
2. It facilitates the free and unrestrained violation of fundamental rights of those workers and
settlers like ‘Gorkha’ who have lived there since 1846, but have not been given proper
Permanent Resident Certificates, even after false promises were made to them.
3. It facilitates the free and unrestrained violation of fundamental rights of those workers and
settlers like Safaikaramchari, scheduled Caste and Scheduled Tribe people who have lived
there for three generations but have not been given Permanent Resident Certificates, even
after false promises were made to them.
4. 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.
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5. Therefore, it is abundantly clear that the evil of ‘Nepotism’ has been given a pronounced power
in the hands of bandit politicians in the State of J&K, to ride roughshod over the rights of
commoners.

Permanent Resident Certificate (PRC)

Section- 6 of J&K Constitution itself lays down that (1) Every person who is, or is deemed to be, a citizen
of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on
the fourteenth day of May, 1954- (a) he was a State Subject of Class I or of Class II ; or (b) having lawfully
acquired immovable property in the State, he has been ordinarily resident in the State for not less than
ten years prior to that date i.e. about 15 June 1944.

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Power Politics

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1. J&K Constituent Assembly incorporated in J&K Constitution discriminatory provisions under

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Section-51 (Qualifications for membership of the Legislature.- A person shall not be qualified to

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be chosen to fill a seat in the Legislature unless he is a Permanent Resident of the State),

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Section- 127 (Transitional provisions.-Until other provision is made in this behalf under this

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Constitution, all the laws in force immediately before the commencement of this Constitution

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and applicable to any public service or any post which continues to exist after the
commencement of this Constitution, as service or post under the State, shall continue in force

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so far-as consistent with the provisions of this Constitution) and Section-140 (The elections to

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the Legislative Assembly shall be on the basis of adult suffrage ; that is to say, every person who
is a permanent resident of the State and who is not less than Eighteen years of age on such date

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….), etc.
2. No person who is not a Permanent Resident of J&K ( Permanent Resident Certificate of J&K ) can
own property in J&K.
3. No person who is not a Permanent Resident of J&K (Permanent Resident Certificate of J&K) can
obtain job with J&K Government.
4. No person who is not a Permanent Resident of J&K ( Permanent Resident Certificate of J&K ) can
join any professional college run by government of J&K or get any form of government aid out of
government funds.

The Permanent Resident Provision serves to:

1. Maintain the stagnation of Power Politics in the State of Jammu and Kashmir.
2. It prevents any change being brought about in the population demographic.
3. It protects and preserves the monopoly of business in the hands of a few who have lived there
for generations.
4. Therefore, it follows the ‘order of things’ that keeps backward villages everywhere in the world
in the grip of the village bandits under the garb of protecting traditional order or power
structure.

PIL against Article 35A: Special status to state permanent feature of Constitution, say J&K govt
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Article 35 A accords special rights and privileges to J&K natives and empowers its legislature to frame
any law without attracting a challenge on grounds of violating right to equality from other states or
any other rights under Constitution.

Implying that Article 35 A has become a permanent feature of the Indian Constitution, the Jammu and
Kashmir government on Thursday told the Supreme Court that the 1954-Presidenial Order granting
special rights to permanent residents of the state has been recognised, accepted and acted upon since
its enactment and cannot be challenged now.

Article 35A, which was added to the Constitution by a Presidential Order in 1954, accords special rights

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and privileges to the natives of J&K, and empower its legislature to frame any law without attracting a

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challenge on grounds of violating right to equality of people from other states or any other right under

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the Indian Constitution.

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Submitting its affidavit in response to a PIL that challenged the constitutional validity of Article 35A, the

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state government asserted that the President has the power to incorporate a new provision in the

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Constitution by way of an Order, as was done for J&K.

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The PIL, filed by a Delhi-based NGO ‘We the citizens’, has sought Article 35A to be declared
unconstitutional, contending the President could not have amended the Constitution by the 1954-order
and it was supposed to be a temporary provision. It said the J&K government, under the guise of Article
35A and Article 370 which grants special autonomous status to the state, has been discriminating
against non-residents who are debarred from buying properties, getting a government job or voting in
the local elections.

But the state’s affidavit, settled by eminent jurist Fali S Nariman said “the instant petition seeks to upset
settled law, accepted and complied with by all” , besides the fact that the challenge to the Presidential
Order has come after more than 60 years. “After this length of time when the provisions enacted in
Article 35A of the Constitution have been continuously acted upon and treated as valid, the same ought
not to be permitted to be challenged,” it added.

Responding to a notice issued by the court more than a year ago, the affidavit denied that the President
has no power to amend the Constitution by incorporating a new Article while also disputing the NGO’s
contention that the Constitution can be amended only under Article 368, which confers the power on
the Parliament and not exclusively on the President to make amendments. It claimed Article 368 will
not hold the field in respect of matters covered by Article 370 under which the state has a unique
status and it will only be by way of a Presidential Order that an amendment under Article 368 can
apply to J&K.
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The J&K government said that Article 35A does not infringe any fundamental right of citizens, and
pointed out that Article 370 has elucidated that provisions of the Indian Constitution will not be a
limitation on the laws of this state. The apex court, it added, has already ruled in two cases in 1960s that
the J&K government can make exclusive provisions have been upheld.

The affidavit has been filed after deliberation at the highest level. According to the sources, the
government’s previous draft was objected to by the BJP, following which it was significantly improved
and controversial references regarding Maharaja Hari Singh and the Instrument of Accession were
dropped. The initial draft had stated that J&K’s “accession” to India was “limited in scope and not
absolute”. The Central government is still to file its reply on the matter.

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• Article 35A gives the Jammu and Kashmir legislature the power to define the “permanent

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residents” of the state and provide them with special rights and privileges.

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The provision bars citizens from other parts of the country from acquiring immovable property

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in the state, taking up jobs with the state government, availing of state-sponsored scholarships,

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or settling permanently anywhere in the Valley.

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For both the People’s Democratic Party and the National Conference, a debate around Article 35A

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threatens to unravel the very terms on which the state of Jammu and Kashmir functions within the
Indian Union. The questions it throws up travel back to Article 370 of the Indian Constitution, which

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grants Jammu and Kashmir special status, and to the state’s accession to India itself.

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Second, the current moment taps into deeper anxieties in the state about land – which circumscribes an
identity. Jammu and Kashmir is India’s only Muslim-majority state. Over the last few years, there have
been growing fears about Central incursions into land reserved for the people of the state, and
allegations that the Centre was working on a “demographic change” in order to dilute the region’s
distinct identity.

A residency law

The genesis of the current debate over Article 35A can be traced back to 2014, when a non-
governmental organisation called We the Citizens filed a public interest litigation before the Supreme
Court challenging Article 35A. The Jammu and Kashmir government vehemently opposed any revision
of the Article but the Centre refrained from backing the state’s plea in court in 2015. This despite the
fact that the People’s Democratic Party and the Bharatiya Janata Party are allies in the state
government.

More recently, a Kashmiri woman called Charu Wali Khan, settled outside the state, challenged the
provision, saying that it took away her succession rights. In 2002, the Jammu and Kashmir High Court
had ruled that the daughter of a permanent resident who married a non-state subject would not lose
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her status as a permanent resident of the state. Responding to Khan’s plea, the Supreme Court sent
notices to the Centre and the state last month.

First, a look at the law:

As some commentators point out, the logic of Article 35A flows from Dogra-era legislation. Restrictions
on outsiders buying land were in place since 1846, when the British handed over the territory to the
Dogra kings. In 1927, the Dogra state enacted the Permanent Residents Act. However, Article 35A itself
came into existence after 1947, when the Dogra rulers signed the instrument of accession, which was
meant to usher in a new political structure.

Under the Instrument of accession, the state surrendered three key areas of governance to the Centre

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– defence, communication, external affairs and ancillary areas. Other areas of governance would be

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under state control.

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After an understanding was hammered out between Prime Minister Jawaharlal Nehru and National

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Conference leader Sheikh Abdullah, Article 370 was factored into the Indian Constitution. It gave Jammu

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and Kashmir the autonomy to frame its own Constitution. Laws passed by Parliament, other than those

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connected with the three subjects stipulated in the instrument of accession, could only come into

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force in the state under a presidential order ratified by the state legislature.

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Article 370, restricted the Union’s legislative power over Kashmir to the three subjects in the Instrument
of Accession. To extend other provisions of the Indian Constitution, the Union government would have
to issue a Presidential Order to which state government’s prior concurrence was necessary.

Further, this concurrence would have to be upheld by the constituent assembly of Kashmir, so that
the provisions would be reflected in the state’s constitution. This implied that once Kashmir’s
constituent assembly framed the state’s constitution and dissolved, there could be no further
extension of the Union’s legislative power. This was the core of J&K’s autonomy.

Following another set of negotiations in 1952 between New Delhi and Srinagar—known as the Delhi
Agreement—several other provisions of the Indian constitution were extended to J&K via a
Presidential Order in 1954. Among other things, this order empowered the state legislature to regulate
the rights of permanent residents. These were subsequently defined in the J&K constitution of 1956.
Article 35A of the Indian constitution merely clarifies the different status of J&K in this regard.
Questioning the validity of this Article has no bearing on the rights of state subjects. Nor can the
Presidential Order of 1954 be questioned without questioning the validity of other provisions of the
Indian constitution it extended to J&K. What’s more, such orders have periodically been used to
amend the state’s constitution.
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In 1954, Article 35A was inserted through a presidential order called The Constitution (Application to
Jammu and Kashmir) Order, 1954, which was issued under Article 370, and absorbed in the Jammu and
Kashmir Constitution, adopted in 1956. It defined “permanent residents” of Jammu and Kashmir,
namely, those who were already state subjects in 1954 or had lived there for at least 10 years. It
conferred on them special rights and privileges that sought to protect the character, culture and
demography of the state as it was when it joined the Indian Union.

‘Place of permanence’

Over the decades, Article 370 itself has become the centre of heated debate. The Constitution states
that it is a “temporary provision”. However, the Jammu and Kashmir High Court established in 2015 that
it had “assumed place of permanence in the Constitution”, and could not be amended, repealed or

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abrogated.

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For Kashmiri parties, it became an article of faith. But parties like the BJP maintained that the provision

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was temporary and made the abrogation of Article 370 part of its core agenda, along with the building

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of the Ram Temple at Ayodhya and the imposition of a Uniform Civil Code.

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It has also been argued that many of the autonomies granted by Article 370 have been eroded anyway.
Despite the clauses of the article, constitutional orders were passed long after the state’s constituent

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assembly had wound up, which meant that a large number of Central laws now apply to the state as
well.

Not surprisingly, the safeguards flowing from the state’s special status have also been challenged. While
Article 35A was meant to preserve the distinct character of the state, the petitioners in the 2014 case
found it discriminatory as it denies Indian citizens outside Jammu and Kashmir the right to own land
or get voting rights. This, they said, violated Article 14 of the Constitution, which guarantees equality
before law and equal protection from the State.

The petitioners also point to the exception clause in Article 35A to push their case. While protecting
the rights of the permanent residents, Article 35A also states that any law “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”.

They also asserted that a Constitutional amendment of this kind cannot be made through a
Presidential order, and it was Parliament alone that had the powers to make such a provision. Yet the
Supreme Court upheld its validity when it dealt with the question of whether the president had powers
to pass Constitutional orders such as the one on Jammu and Kashmir in 1954.
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However, if such presidential orders are to be challenged, it could lead to a deeper unravelling. Senior
advocate DA Rashid notes that if the presidential order of 1954 went, so would many others:

“If the Court rules that Constitutional Application Orders are invalid, such a judgment will have to be
made applicable to all the Constitutional Application Orders from 1950 till date. The Constitutional link
between the Union and the State will be snapped and the position of the State will be same as it was
before constitutional arrangements were worked out.”

‘Delectable places’ and ‘demographic change’

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Justifying the continuation of the Dogra-era law to the Lok Sabha in 1952, Nehru had said that the

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restrictions had first been put in place to prevent the British from settling there and acquiring property,

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and now the government of Kashmir was anxious that the same would happen within the Indian Union.

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Kashmir would be singled out, they feared, because of its “delectable” climate and places.

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In restive Kashmir, land has remained one of the main causes for tension with Delhi. Apart from exciting

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the mainland’s appetites, it was seen as a means for the Centre to expand its presence in the Valley.

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In the 1990s, as militancy erupted in the state, security camps came up across the Valley, on land that
was occupied illegally, in some cases. Then in 2008, as the government prepared to parcel off 39.88
hectares of forest land to the Amarnath Shrine Board, protests broke out in Kashmir, opposing the
move. In Jammu, meanwhile, there were counter protests, demanding that the land be transferred.

What started as an agitation on land soon turned into an anti-government uprising. By the time the
unrest ended, with the government agreeing to give the shrine board only temporary control of the land
during the 40 days of the Amarnath Yatra, at least 46 people had been killed.

But the fear of “demographic change” never went away and was resurrected as the People’s Democratic
Party tied up with the BJP to form a coalition government after the 2014 elections. Soon afterwards,
rumours of Sainik Colonies for soldiers floated up. The government was also reported to be mulling
separate settlements for Kashmiri Pandits who had been driven out of the Valley by the militancy of the
1990s. As militancy gained ground again, the new local fighters in Kashmir warned of attacks against
such colonies, should they come into being.

‘National integration’?
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As the coalition running the state government grows strained, the BJP speaks in different voices. At the
Centre, the party has remained largely silent on the issue in the past few weeks, letting its Jammu
leaders do the talking. While one legislator called Article 35A a “constitutional mistake”, the state’s chief
spokesperson, Sunil Sethi, said it had led to “disparity and inequalities”. The party has long criticised the
provision for creating a deeper sense of “alienation” and a separate identity for the state.

Soon afterwards, Sethi struck a more placatory note. He said that while the BJP was opposed to Article
370 and that Article 35A had “done a lot of damage” to the state, they were not going to tamper with
any laws so long as the alliance with the People’s Democratic Party was alive.

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Besides, as the BJP militates against permanent residency laws in its push for national integration, it may

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have to answer some tricky questions. Several states in the country have domicile policies cordoning off

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their “original inhabitants” from outsiders. In North Eastern states such as Manipur and Arunachal

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Pradesh, there are restrictions on outsiders buying land, under a policy of “protective discrimination”.

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Do these laws also get in the way of the project of national integration?

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