Article 35A of the Indian Constitution empowers J&K legislature to define state's "permanent residents" and their special rights and privileges. The law was inserted in the Constitution through a Presidential order of 1954 instead of a parliamentary amendment under Article 368.

* 35A is based on Article 370 , a temporary and transitional provision that was included in the Indian Constitution, on the terms negotiated between J&K’s popular leader Sheikh Abdullah and the Centre led by then Prime Minister Jawaharlal Nehru in 1949.

* Article 370 guarantees special status to Jammu and Kashmir , restricting the Union's legislative powers to just three areas -- defence, foreign affairs and communications. As a result, J&K adopted its own constitution in 1956.

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* The law related to Permanent Residency in J&K Constitution is drawn from the state subject laws introduced by Maharaja Hari Singh in early twentieth century during the Dogra rule. J&K was a princely state until 1947 when it acceded with India using Instrument of Accession (IOA).



*The Permanent Residency laws of J&K are based on Maharaja Hari Singh’s two notifications issued in 1927 and 1932, which defined state subjects and their rights. The Dogra laws were introduced to prevent the influx of migrants from neighbouring Punjab during the British rule.

*J&K defines its permanent residents as “all persons born or settled within the state before 1911 or after having lawfully acquired immovable property and residence in the state for not less than 10 years or prior to that date”. All emigrants from Jammu and Kashmir, including those who migrated to Pakistan, are considered state subjects. The descendants of emigrants are considered state subjects for two generations.

*The law prohibits non-permanent residents from settling permanently in the state, acquiring immovable property, government jobs, scholarships and aid.

*However, the law is discriminatory against the J&K women. It disqualified them from their state subject rights if they married non-permanent residents. But in a landmark judgment in October 2002, the J&K high court held that women married to non-permanent residents will not lose their rights. However, the children of such women don't have succession rights as of now.

*Article 35A has been a subject of public debate and controversy ever since it was challenged in the Supreme Court in 2014 on the grounds that it was not added to the Constitution through amendment under Article 368 and never presented before Parliament. It was also challenged by Kashmiri women married to ‘outsiders’ arguing that the state's permanent residency law, flowing from 35A, had disenfranchised their children.

*Though the case is sub-judice, the government can bring a bill in Parliament to scrap Article 35A. Since BJP in its manifesto and election campaign has committed itself to its revocation, there is speculation that the government will table a bill during the ongoing parliamentary session.

*Kashmir’s entire political leadership is against the revocation of Article 35A because it fears that opening up the state to non-permanent residents can change the demography of the only Muslim majority state in India. However, in the last 70 years, the religious demography of Kashmir has remained unchanged even as Hindu majority in Jammu and Buddhists in Ladakh can legally buy land and property in the valley.



In Video: Article 35A: How is it significant to J&K?