Article 35A: What It Did, Why It Was Contested, and What Changed in 2019
Article 35A explained: how a 1954 Presidential Order created it, the permanent resident rights it protected, the constitutional objection to its insertion, and the consequences of its ceasing to operate in 2019.
Article 35A was a provision that allowed the Jammu and Kashmir legislature to define who counted as a “permanent resident” of the state and to reserve certain rights exclusively for them, and it ceased to operate on 5 August 2019. What made it constitutionally unusual was not what it protected but how it entered the Constitution: through a Presidential Order in 1954 rather than through a parliamentary amendment under Article 368.
How It Came Into the Constitution
- Inserted by the Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the President under the powers of Article 370(1)(d).
- It was placed in Part III, after Article 35, and appeared only in an appendix to the Constitution rather than in the main text.
- It was not passed by Parliament and did not go through the amendment procedure in Article 368. That single fact was the core of the constitutional objection to it.
- It gave effect to the 1927 and 1932 State Subject Notifications of the Dogra ruler, which had originally defined hereditary state subjects.
What It Actually Did
Article 35A protected any state law defining permanent residents, or conferring special rights on them, from being struck down for violating fundamental rights. In effect it created an immunity, not a right.
- Definition power. The state legislature could define who was a permanent resident of Jammu and Kashmir.
- Immovable property. Only permanent residents could acquire land and property in the state.
- Government employment. State jobs were reserved for permanent residents.
- Settlement. Rules on settlement in the state applied to permanent residents.
- Scholarships and aid. State scholarships and other forms of assistance were restricted to permanent residents.
Crucially, any such law was immune from challenge under Articles 14, 19 or 21. That immunity is what made the provision powerful and what made it contested.
The Consequences
- Outsiders could not buy land or take up state government employment, which limited external investment and industrial development.
- Gender discrimination. A woman marrying a non-permanent resident faced loss of her descendants’ rights. The Jammu and Kashmir High Court held in 2002 that the woman herself retained her status, but the position of her children remained unsettled.
- West Pakistan refugees, who came in 1947 and settled largely in the Jammu region, remained without permanent resident status for generations. They could vote in parliamentary but not assembly elections.
- The Valmiki community, brought to the state in the 1950s as sanitation workers, were restricted to that occupation across generations.
- Gorkhas resident for generations remained outside the definition.
- The case for it: supporters argued it protected the demographic character, land and cultural identity of a state that had acceded on specific terms, and pointed out that comparable land protections exist elsewhere in India.
What Changed in 2019
- On 5 August 2019, the Constitution (Application to Jammu and Kashmir) Order, 2019 superseded the 1954 Order, and a subsequent Presidential Order under Article 370(3) rendered the special provisions inoperative. Article 35A ceased to operate.
- The Jammu and Kashmir Reorganisation Act, 2019 divided the state into two union territories: Jammu and Kashmir with a legislature, and Ladakh without one.
- The full Constitution of India, all fundamental rights and central laws now apply. The state Constitution and flag lapsed.
- Domicile rules notified in 2020 replaced the permanent resident category, extending eligibility to persons resident for fifteen years, students who studied seven years and appeared in class 10 or 12 in the state, and children of central government employees who served there.
- In In Re Article 370 (December 2023), a Constitution Bench of the Supreme Court upheld the abrogation, holding that Article 370 was a temporary provision and that Jammu and Kashmir retained no element of internal sovereignty after accession. It directed restoration of statehood at the earliest and elections, which were held in 2024.
Effects Since
- Rights extended uniformly. The Right to Education, the Right to Information, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and land reform legislation apply in full for the first time.
- Previously excluded groups — West Pakistan refugees, the Valmiki community and Gorkhas — received domicile and voting rights in assembly elections.
- Gender equality. The loss of property and succession rights on marrying outside was removed.
- Investment and land. Removal of the land barrier opened the way for the new industrial development scheme and large connectivity projects.
- Local democracy. Panchayat and District Development Council elections followed, and an elected government was restored in 2024.
- The unresolved question is the restoration of statehood, which the Supreme Court directed and which remains a live political demand.
Frequently Asked Questions
What was Article 35A?
A provision that allowed the Jammu and Kashmir legislature to define permanent residents of the state and to confer special rights on them in immovable property, government employment, settlement and scholarships, while protecting such laws from challenge under fundamental rights.
How was Article 35A inserted into the Constitution?
Through the Constitution (Application to Jammu and Kashmir) Order, 1954, a Presidential Order issued under Article 370(1)(d). It was never passed by Parliament and did not go through the amendment procedure of Article 368, which was the central constitutional objection to it.
What is the difference between Article 370 and Article 35A?
Article 370 was a temporary provision in Part XXI that defined the constitutional relationship between Jammu and Kashmir and the Union, limiting Parliament’s legislative power. Article 35A was narrower: it protected state laws defining permanent residents and their exclusive rights from being struck down for violating fundamental rights.
Who was excluded by the permanent resident category?
West Pakistan refugees who arrived in 1947, members of the Valmiki community brought to the state in the 1950s, and Gorkhas resident for generations. Women marrying non-permanent residents also faced loss of their descendants’ rights.
When did Article 35A cease to operate?
On 5 August 2019, when the Constitution (Application to Jammu and Kashmir) Order, 2019 superseded the 1954 Order and a Presidential Order under Article 370(3) rendered the special provisions inoperative.
What did the Supreme Court hold on the abrogation?
In In Re Article 370, decided in December 2023, a Constitution Bench upheld the abrogation, holding that Article 370 was a temporary provision and that Jammu and Kashmir retained no element of internal sovereignty after accession. It directed restoration of statehood at the earliest and the holding of elections.
Practice Questions
Prelims MCQs
1. Article 35A was inserted into the Constitution through:
- (a) A constitutional amendment under Article 368
- (b) A Presidential Order in 1954
- (c) A resolution of the Jammu and Kashmir Constituent Assembly
- (d) An Act of Parliament in 1956
Answer: (b) A Presidential Order in 1954
2. Article 35A was placed in which Part of the Constitution?
- (a) Part III
- (b) Part IV
- (c) Part XXI
- (d) Part XI
Answer: (a) Part III
3. Article 35A ceased to operate on:
- (a) 26 January 2019
- (b) 5 August 2019
- (c) 31 October 2019
- (d) 11 December 2023
Answer: (b) 5 August 2019
4. The Jammu and Kashmir Reorganisation Act, 2019 created:
- (a) One union territory
- (b) Two union territories, both with legislatures
- (c) Two union territories, one with a legislature
- (d) A state and a union territory
Answer: (c) Two union territories, one with a legislature
5. The Supreme Court judgment upholding the abrogation of Article 370 was delivered in:
- (a) August 2019
- (b) March 2020
- (c) December 2023
- (d) October 2024
Answer: (c) December 2023
Mains Questions
- Discuss the pre and post abrogation status of Articles 370 and 35A and the positive impacts of abrogation on mainstreaming Jammu and Kashmir. (15 marks, 250 words)
- “The objection to Article 35A was about how it entered the Constitution, not only what it protected.” Critically examine. (15 marks, 250 words)
- Examine the consequences of the permanent resident category for excluded communities in Jammu and Kashmir. (10 marks, 150 words)
- Discuss the domicile rules notified in 2020 and how they differ from the earlier permanent resident category. (10 marks, 150 words)
- Analyse the reasoning of the Supreme Court in In Re Article 370 (2023) and its implications for Indian federalism. (15 marks, 250 words)