This article is written by Prem Garg, here he has discussed Article 35 A of the Indian Constitution.

Introduction

Article 35A of the Indian Constitution was added by presidential order in 1954 on the aid and advice of the Jawaharlal Nehru cabinet. It was promulgated in consonance with Article 370 of the Constitution. It grants special status to J&K and empowers the Legislature of Jammu and Kashmir to define its ‘Permanent Residents’, their rights and privileges and imposing restrictions upon other persons.

History of Article 35A

Before independence, J&K was a princely state ruled by Maharaja Hari Singh and its citizens were referred to as the subjects of the state. In 1927 and 1932, Hari Singh passed State Subject order conferring rights and privileges only to those state subjects. It was passed due to the apprehensions of Dogras from Jammu that the influx of people from Punjab would render them to lose their lands and jobs.

After J&K’s accession to India, National Conference leader Sheikh Abdullah took over the reign form Hari Singh. Sheikh Abdullah and the then Prime Minister of India Jawaharlal Nehru entered into an agreement known as the Delhi Agreement of 1952.

Pursuant to the Agreement of 1952, the provision of the state deciding special rights and privileges on its people was added to the Constitution through the Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the country’s first president, Rajendra Prasad, on May 14, 1954, through powers conferred by clause (1) of Article 370. It was intended to protect the State Subject order.

Who are the Permanent Residents of Jammu & Kashmir?

Section 6 under Part III of the Constitution of Jammu and Kashmir defines the Permanent Residents of Jammu and Kashmir. It states that:

(1)Every citizen of India shall be a permanent resident of the State, if on the fourteenth day of May 1954- 

       (a) he was a State Subject; or

     (b) having lawfully acquired immovable property in the State has been ordinarily resident in the state for not less than ten years.

(2) Any person who, before the fourteenth day of May 1954, was a State Subject and who had migrated after the first day of March 1947, to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State.

Understanding Article 35A

Article 35A is not included in the 395 articles of the constitution, rather it is found in Appendix I in the Appendices of the Constitution, for it was not passed by the Indian Parliament. Despite the same, it is virtually included in Part III of the Indian Constitution. 

Following are the special rights and privileges which the Legislature of J&K has conferred only upon its Permanent Residents:

1. Employment under State Government;
2. Acquisition of immovable property in the State;
3. Settlement in the State; or
4. Right to scholarships.

This article further goes on to state that no such law legislated by the J&K Assembly shall be void on the ground of it being inconsistent with the Part III of the Constitution, i.e. inconsistent with the fundamental rights of the Indian citizens.

Arguments In Favour of 35A

1. Scrapping Article 35A would breach the Delhi Agreement 1952 which allowed the Presidential order of 1954 promulgating  Article 35A.
2. Art. 35A conspicuously states that such law shall not be void on being inconsistent with fundamental rights. This creates a restriction for challenging the same.
3. Scrapping it would create apprehension in the minds of Kashmiris that it might disturb the demography and majority of Kashmiri Muslims in the state and cease the special status of J&K.

Arguments against Article 35A

1. It was not added under Article 368 of the Constitution as it was passed in a Presidential order and was not laid down in the Parliament.
2. Indian citizens who are not the Permanent Residents of J&K are barred from buying any property in J&K. On the contrary, the Permanent Residents of J&K can buy property anywhere in India along with J&K. 
3. Persons who have been living for decades in J&K but who are not the residents of J&K can vote in the Lok Sabha elections, however, are barred from voting in State Legislative Assembly elections.
4. Students from other states cannot take admission in any College or University in J&K.
5. Hampers Industrialization and Privatization, for industrial and private sectors, are hard to be established in J&K due to restrictions in ownership.  
6. It is a gender-biased law. A Woman who is a permanent resident of J&K loses her permanent resident status if she marries a man who does not hold the Permanent Resident Certificate(PRC). Further PRC is not given to the children of such a woman, debarring them from inheritance. Whereas the same situation does not arise in the case of a man with PRC marrying a women without PRC.
7. Violative of the integrity of the nation as enshrined in the Preamble of Indian Constitution.
8. Violates fundamental rights of the Scheduled Castes and Scheduled Tribes who have been living in J&K for decades and generations. Valmikis and Dalits, who were brought to the state in the 1950s, were granted the PRC subject to the condition that they and their future generations would continue to serve as safai-karmacharis (scavengers).

Conclusion 

Article 35A is in limelight nowadays. Two wings have been created in the country. One in its support and the other against it. This matter is sub-judice in the Hon’ble Supreme Court of India. The Kashmiris feel that scrapping Article 35A would prejudice their identity as a Kashmiri and would disturb their privacy in Kashmir. Farooq Abdullah, National Conference Leader, says, “If 35A is abrogated, the revolt is going to be bigger.”

The other wing, comprising of the ruling party BJP and others believe that Article 35A should be scrapped to strengthen the unity and integrity of the nation. 

References

1. 1.VN Khanna, Foreign Policy of India(Vikas Publishing House Pvt Ltd,6^th, 2007)
2. 2.Dr. J.N. Pandey, Constitutional Law of India(Central Law Agency, Allahabad-2, 52^nd Edition,2015)
3. 3.https://www.livelaw.in/bjp-leader-moves-sc-seeking-scrapping-of-article-35a-read-petition/(Visited on March 2,2019).
4. 4.http://jklaw.nic.in/instrument_of_accession_of_jammu_and_kashmir_state.pdf (Visited on March 01, 2019)
5. 5.http://www.jklaw.nic.in/delhi1952agreemnet.pdf (Visited on February 28. 2019)
6. 6.http://jklegislativeassembly.nic.in/Costitution_of_J&K.pdf (Visited on March 01,2019)