Context: Recently, the Supreme Court observed that Article 35-A of the Constitution has deprived people not residing in Jammu and Kashmir of some key constitutional rights.

According to a Constitution bench headed by Chief Justice of India Dhananjaya Y Chandrachud:-

• Article 35A gave special rights and privileges to permanent residents and virtually took away the rights for non-residents.

• This artificially created class of ‘permanent residents’ alienated people who did not fall within the category.

Article 35A had even granted immunity from judicial review to these special privileges, as any law which provides for these special privileges would not violate fundamental rights like

• Articles 14 (right to equality),

• Article 19(1)(e) (right to settle anywhere in the country)

• Article 21 (right to life and personal liberty) and

• Article 22 (protection against preventive detention).

However, the CJI asked the government whether the Centre had adhered to the principle of federalism while abrogating Article 370 and abolishing J&K as a full-fledged State.

• Article 3 made it mandatory for the President to consult the State Legislature before altering the status of a State.

• The abrogation was facilitated by first dissolving the J&K State Legislature and then proclaiming President’s Rule under Article 356.

• The Parliament assumed the role of the J&K State Legislature and gave its views to itself about the alteration of J&K from a State to 2 UTs.

Controversies Around Article 35A

Article 35A is unique in the sense that

• It does not appear in the main body of the Constitution.

• It by passed the parliamentary route of lawmaking. Article 368 of the Constitution empowers only Parliament to amend the Constitution.

Article 370 was only a ‘temporary provision’ to help bring normality in J&K and strengthen democracy in that State.

• The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.

• Article 35A was against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”.

• Restricting citizens from other States from getting employment or buying property within J&K is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.

• It was against gender equality. For example, Article 35A restricts the basic right to property if a native woman marries a man not holding a permanent resident certificate.

• Her children are denied a permanent resident certificate, thereby considering them illegitimate.

• Violates judicial review principle. For example, Article 35A mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

‘Permanent residents’ as per Article 35-A

• ‘Permanent residents’ included people who were hereditary State subjects as in 1927, when J&K was a princely state prior to its accession to the Indian Dominion in 1947. 

Current Status of Articles 370 and 35A

• The Constitution (Application to Jammu and Kashmir) Order 2019 withdrew the special status of J&K and extended all provisions of the Indian Constitution (including Part III - Fundamental Rights) to J&K.

• As Article 35A stems from Article 370, the discriminatory provisions under Article 35A are now unconstitutional.