Article 35 : An Overriding Debatable Issue

  • September 14, 2017
  • 12:42 am
  • Sweekriti Nakhat

Seven decades ago, in 1954, Article 35 A of the Indian Constitution has been debatable ever since its Establishment.

Recently, the Supreme Court indicated that the validity of Article 35A and Article 370(which grants special autonomous status to J&K) may ultimately be decided by a Constitution Bench.

Attorney-General KK Venugopal has also called for a debate in the Supreme Court on the sensitive subject.The centre has refused to interfere. Union Home Minister Rajnath Singh on 11 September said that the central government would not go against the“sentiments of the people of Jammu & Kashmir” as far as Article 35A is concerned.

Article 35A gives the Jammu and Kashmir (J&K) Legislature a complete freedom to decide who are “permanent residents” of the state and confer on them special rights and privileges in public sector jobs, acquisition of property in J&K, scholarships, and other public aid and welfare.

Content of Article 35 A

In spite of anything contained in this constitution, no existing law in force in the state of jammu and kashmir and no law hereafter enacted by the Legislature of the State:

Defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—

■employment under the State Government;
■acquisition of immovable property in the State;
■A settlement in the State;
Or
■right to scholarships and such other forms of aid as the State Government may provide,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.”

How did it come about?

J&K was a princely state under the British government before 1947. The people of the princely states were not British colonial subjects but “state subjects”.

Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.

On October 26, 1947,following the addition of Jammu and Kashmir to the Indian Union , the Maharaja, Hari Singh, ceded control over defence, external affairs and communications to the Indian government. The Instrument of Accession and Article 370 of the Constitution of India formalised this relationship.

Discussions for furthering the relationship between the state of J&K and the Union led to the 1952 Delhi Agreement.
Here, the governments agreed that Indian citizenship would be extended to all the residents of the state but the state would be empowered to legislate over the rights and privileges of the state subjects – who would now be called permanent residents.

Did the President act outside their jurisdiction? Article 370(1) says, “The President may apply the provisions of Constitution of India to the State of J&K with such exception and modification as he may by order specify.”

Here, does the phrase “modification” include power to amend the Constitution or to add a new Article to the constitution – like 35A, as had happened in 1954?

A five-judge bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of Indiadiscussed the President’s powers to amend the Constitution. In this case, the apex court observed that the President could modify an existing provision in the Constitution under Article 370. However, whether the President can introduce a new Article altogether is still debated.