Article 35A

Article 35A was a special provision that applied only to the former state of Jammu and Kashmir (J&K). It allowed the state legislature to decide who counted as a "permanent resident" of J&K and to give only those people certain rights: government jobs in the state, buying land and property, settling in the state, and state scholarships.

Outsiders, including other Indian citizens, could be kept out of these rights. Article 35A stopped applying in August 2019, when the whole Constitution of India was applied to J&K.

Why was it created?

When J&K joined India in 1947, its leaders wanted to protect the land, jobs and identity of the local people. They feared that outsiders with more money could buy up land and take away jobs. Think of a housing society that allows only its old members to buy flats, so that the character of the society stays the same. Article 35A gave legal protection to this kind of rule for the whole state.

Where did the idea come from?

The idea of a "state subject" is older than independent India.

• 1927 and 1932: The ruler of J&K, Maharaja Hari Singh, issued the State Subject notifications. They divided residents into classes of hereditary state subjects and gave them exclusive rights to government jobs, land ownership and scholarships.
• 1952: The Delhi Agreement between the Union government and the J&K leadership agreed that "state subjects" would be Indian citizens, and that the state could make special laws for their rights.
• 14 May 1954: President Rajendra Prasad issued the Constitution (Application to Jammu and Kashmir) Order, 1954 under Article 370(1). This order applied large parts of the Constitution to J&K and also added Article 35A.

How was it added, and why was that unusual?

Normally, a new article can be added to the Constitution only through a constitutional amendment under Article 368, which needs a special majority in both Houses of Parliament. Article 35A was never passed by Parliament this way. It was added by a Presidential Order using the power under Article 370 to apply the Constitution to J&K "with modifications".

This is why Article 35A does not appear among the numbered articles of the main text. It is printed in Appendix I of the Constitution, which reproduces the 1954 Order. The Supreme Court had earlier supported a wide reading of this power. In Puranlal Lakhanpal v. President of India (1961), it said the word "modification" in Article 370 must be given the "widest possible amplitude".

What exactly did it say?

Article 35A protected any J&K law that:

• defined the classes of persons who are permanent residents of J&K; or
• gave permanent residents special rights, or put restrictions on others, in matters of:
• employment under the state government;
• acquisition of immovable property (land, houses) in the state;
• settlement in the state;
• scholarships and other forms of state aid.

It also said such laws could not be struck down just because they went against the fundamental rights of other Indian citizens in Part III. In simple words, it shut the court door on these challenges.

How did J&K define a permanent resident?

The Constitution of Jammu and Kashmir was adopted on 17 November 1956 and came into force on 26 January 1957. Its Section 6 said an Indian citizen was a permanent resident if, on 14 May 1954:

• they were a State Subject of Class I or Class II; or
• they had lawfully bought immovable property in the state and had been ordinarily resident there for at least 10 years before that date.

The state legislature could change this definition by law. The state issued a Permanent Resident Certificate (PRC) as proof.

Who was left out?

Some groups lived in J&K for decades but could not become permanent residents.

• West Pakistan refugees: Families who came from areas that became Pakistan in 1947. They could vote in Lok Sabha elections but not in Assembly or local body elections, and could not get state jobs or buy land.
• Valmiki families: Brought from Punjab in 1957 to work as sanitation workers. Their children could not get state jobs outside sanitation work.
• Gorkhas and others who settled in the state long ago faced similar limits.
• Women: For many years, a woman permanent resident who married a non-permanent resident was treated as losing her status. On 7 October 2002, in State of J&K v. Dr. Susheela Sawhney, a Full Bench of the J&K High Court held by majority that she does not lose her status on marriage. A 2004 bill to reverse this ruling was not enacted. But her husband and children still could not get permanent resident rights.

How did it end?

On 5 August 2019, the President issued the Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272). It replaced the 1954 Order and applied all provisions of the Constitution to J&K. With the 1954 Order gone, Article 35A ceased to apply. The next day, C.O. 273 declared that the clauses of Article 370 would cease to operate, except in an amended form.

On 11 December 2023, in In Re: Article 370 of the Constitution, a five-judge bench of the Supreme Court upheld these orders. During the hearing in August 2023, the Chief Justice observed that Article 35A had "virtually taken away" fundamental rights of other citizens, such as equality of opportunity in public jobs.

What replaced it?

The idea of a "permanent resident" was replaced by "domicile".

• 31 March 2020: An order adapting J&K's state laws defined domicile for government jobs. A person is a domicile if they have lived in J&K for 15 years, or studied there for 7 years and appeared in the Class 10 or Class 12 exam there. Migrants registered with the Relief and Rehabilitation Commissioner also qualify.
• Children of Central government employees (including officers of all-India services, central public sector units, banks and central universities) who have served in J&K for 10 years also qualify.
• 18 May 2020: The Jammu and Kashmir Grant of Domicile Certificate (Procedure) Rules, 2020 laid down how to apply.
• 26 October 2020: A further order repealed 12 state laws and amended 14 others. It removed the words "permanent resident of the State" from Section 17 of the J&K Development Act, so any Indian can now buy non-agricultural land in the Union Territory.
• West Pakistan refugees and Valmiki families voted in local elections for the first time in the District Development Council elections of 2020, and in Assembly elections in 2024.

Commonly confused concepts

• Article 35A vs Article 370: Article 370 was the main door through which the Constitution applied to J&K, with special conditions. Article 35A came in through that door, via the 1954 Order, and dealt only with the rights of permanent residents.
• Article 35A vs Article 35: Article 35 is an ordinary article in Part III. It gives Parliament (not the states) the power to make laws on certain fundamental rights, such as residence rules for jobs under Article 16(3). The two are completely different.
• Article 35A vs Article 371 (371A to 371J): Article 371 and its sub-articles give special provisions to states such as Nagaland, Mizoram, Maharashtra and Gujarat, for example protecting local customs and land. They were added by constitutional amendments under Article 368 and still continue.
• Permanent resident vs domicile: Permanent residence under the old system was mostly hereditary and fixed to 1954. Domicile today is based on years of living or studying in the Union Territory.
• Land limits elsewhere: Some states still restrict land sales to outsiders through ordinary state laws. An example is Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, which limits transfer of agricultural land to non-agriculturists. These are laws, not special constitutional articles.

Issues, criticism and the way forward

• The argument for Article 35A: Supporters said it protected the land, jobs and cultural identity of a small, sensitive region. It was part of the conditions under which J&K joined India. Its removal, they argue, has created fears of changes in the population mix and loss of local jobs.
• The argument against Article 35A: Critics said it was added without Parliament, through a Presidential Order. It kept out Indian citizens who had lived in J&K for generations, such as West Pakistan refugees and Valmiki families. It treated women unequally, and it blocked courts from checking these laws.
• Legal debate: In 2014, a petition by an organisation called We the Citizens challenged Article 35A in the Supreme Court, mainly because it was not added through Article 368. That challenge lost relevance after 2019. The 2023 judgment upheld the 2019 orders.
• Way forward suggested by experts: Many experts suggest protecting local interests in other ways that fit within the Constitution. Examples include domicile-based reservation in jobs and education, limits on buying agricultural land, and special provisions similar to Article 371, made through proper amendments. They also suggest restoring statehood soon, as the Supreme Court directed, so elected representatives can shape these rules.

Concepts to Know

• Presidential Order: An order issued by the President using a power given by the Constitution. Under Article 370, such orders decided which parts of the Constitution applied to J&K.
• Immovable property: Property that cannot be moved, such as land and buildings.
• Appendix I: A section printed at the end of the Constitution's official text that reproduces the 1954 Order. Article 35A appeared only there, not among the numbered articles.
• State Subject: The old term, from the Maharaja's time, for a hereditary resident of J&K with special rights to land, jobs and scholarships.
• Domicile: The legal status of having your permanent home in a place, which can give you rights such as applying for local government jobs.
• Article 368: The article that lays down how the Constitution can be amended by Parliament, usually by a special majority.