DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

Academic Year
2018-2019
ARTICLE 35 (A) AND THE SPECIAL STATUS

UNDER THE GUIDANCE OF: SUBMITTED BY:

DR. ATUL KUMAR TIWARI SAURABH SINGH

ASSOCIATE PROFESSOR-(LAW) ENROLL.NO: 170101124

DR. RAM MANOHAR LOHIYA SECTION: “B”

NATIONAL LAW UNIVERSITY B.A. LLB (Hons.), SEMESTER-III

SIGNATURE OF PROFESSOR SIGNATURE OF STUDENT

1
 ACKNOWLEDGEMENT

This project would not have been possible without the kind support and help of many individuals
and organizations. I would like to extend my sincere thanks to all of them.

I am highly to Dr. Atul Kumar Tiwari for her kind guidance and constant supervision and also
for providing necessary information regarding the project.

I would like to express my gratitude towards my parents for their kind co-operation and
encouragement which helped me in completion of this project.

My thanks and appreciations also go to my colleagues in developing the project and people who
have willingly helped me out with their abilities.

Saurabh Singh

2
 TABLE OF CONTENT

1. INTRODUCTION
2. HISTORY OF 35 A
3. WHETHER THE ARTICLE CONSTITUTIINALY VALID OR NOT?
4. NON PERMANENT RESIDENT ARE DISCRIMINATED ON RELIGION, CASTE AND
SEX?
5. WHETHER WOMEN ARE NOT GIVEN EQUAL RIGHT AND THEY ARE
DISCRIMINATED ON THEIR SEX?
6. IF ARTICLE 35 A GOES DOWN WHAT CONSECQUENCES WILL HAPPEN
7. CONCLUSION
8. BIBLOGRAPHY

3
 RESEARCH QUESTIONS

1. WHETHER THE ARTICLE CONSTITUTIINALY VALID OR NOT?

2. NON PERMANENT RESIDENT ARE DISCRIMINATED ON RELIGION, CASTE AND
SEX?
3. WHETHER WOMEN ARE NOT GIVEN EQUAL RIGHT AND THEY ARE
DISCRIMINATED ON THEIR SEX?
4. IF ARTICLE 35 A GOES DOWN WHAT CONSECQUENCES THE STATE WILL FACE

4
 INTRODUCTION

Article 35A Of the Constitution of India provides for saving the law with respect to the
permanent resident and their rights
35A. notwithstanding anything contained in the constitution, no existing Law in force In the
State of Jammu and Kashmir, and No Law hereafter enacted by the legislature of the state
A) Defining the classes of persons who are, or shall be permanent resident of the state of Jammu
and Kashmir; or
B) Conferring on such permanent resident any special rights and privilege, or imposing upon
other persons any restriction, as respects:-
I) employment under the state government
ii) Acquisition of immovable property in the state
iii) Settlement in the state
iv) Right to scholarship and such other form of aids the state Government may provide,
Such a law shall not be void on the ground that it is inconsistent tent with or takes away or
abridges any rights conferred on the other citizens of India by any provision of this part1

HISTORY OF 35 A
Article 35 A was inserted under the provision Constitution (Application of Jammu and
Kashmir)Presidential order on 14 May 1954 by Rajendra Prasad (President) on the Advice of
Nehru Government between Nehru and Prime Minister Of Jammu and Kashmir Sheik Abdullah
,which extended Indian citizenship to the ‘State Subject ‘of Jammu and Kashmir of This come
under the Delhi Agreement which was held in 1952 in which series of negotiation was held
between J &K ( Representation the National Conference) and The Government of India, The
research of which were encapsulated in a document called the Delhi government this was held in
July 24,1952 , that was not constitutionally valid2.
The Points that are included under the Agreement:
1. Residuary Power-The Residuary Power Vested with the Centre in respect of all states other
than Jammu and Kashmir, in the case of the latter, they vested in the State itself.

1
Prof .S.K.Sharma,The Constitution of Jammu & Kashmir,(Universal Law Publishing Co2011)92
2
Prof .S.K.Sharma,The Constitution of Jammu & Kashmir,(Universal Law Publishing Co2011)92

5
2. Citizenship-It was agreed that person domicile in the state of Jammu and Kashmir shall be the
Citizen Of India but the state Legislature shall have power to define and regulate the rights and
privilege of the permanent resident of the state
3. Fundamental Rights- Fundamental Rights which are contained in the Constitution of India
could not be conferred on the resident of the state of Jammu and Kashmir, and not come in the
way of the state programmers of land reforms
4. National Flag- National Flag have the same status in Jammu and Kashmir, but state flag will
also be recognized
5. President Of India-Power to Grant Reprieve and commute death sentences, etc., should also
belong to the president of India
6. Headship of the State-The head of the state shall be recognized by the President of the Union
and State Legislature and would be called Sadar-i-Riyasat.
7. Supreme Court-It was accepted that for the time being, owing to the existence of the Board of
Judicial Advisers in the State, the Supreme Court should have only appellate jurisdiction.
8. Emergency Power-President of India can state emergency on external Danger of the state but
in internal matters it would only on the request of state government

6
WHETHER THE ARTICLE 35 A IS CONSTITUTIONALY VALID OR NOT

Article 35 A is not constitutionally and for this a writ petition was filed by an NGO name ‘We
the citizen ’ to the Supreme Court of India that article was introduced in the Indian Constitution
in 1954 only through a Presendtial order As per the NGO“Although it is within the rights of the
President to pass such orders, yet any such order can become a part of the Indian Constitution only after
it gets approval of both Houses of Parliament by a majority vote”3 The NGO has accordingly
questioned the intentions of the erstwhile central government for including this Article only as an
“Annexure” of the Constitution and not incorporating it in the main text of the Constitution
NGO also questioned certain question
1. Why was Constitution of India not made applicable to J&K in the same manner as it was
applied to other States?
2. Why J&K has its own Constitution, its own flag, its own High Court, prescribes oath for the
Honorable Judges, and the Governor.
3. Why do the Permanent Residents of the State enjoy Special Rights and Privileges?

There are some points that stated that it is valid for some days
1. The President of India has also sole legislative power under article 123 of the constitution,
power to make ordinance when either house of the Parliament is not in session. This legislative
power of the president have only six-month effect; in other words, it is the authority to make
laws without discussion in the Parliament in urgency for a shorter period. It is an exception in the
making law not a general rule or a permanent measure.
2. In the matter of constitutional relationship between state of J&K and union of India governed
by Article – 370 of Indian Constitution the President is empowered under Article 370 (1) (d)
which reads as under :
“Such of the other provisions of this Constitution shall apply in relation to that State subject to
such exceptions and modifications as the President may by order specify.” subject to the
concurrence of the then (in-term state government of 1948) with further ratification of
constituent assembly of Jammu & Kashmir as and when convened.
But the Legal Argument
1. The President cannot by-pass Parliament’s Amending powers under Article 368; by making an
order under Article 370, he cannot add a new provision Article 35A to the constitution. Lastly, it
is violate of “the basic structure” of the Indian Constitution as it violates Article14, the guarantee
of equality before the law.

3
Article 35A and the Future of Stability in Kashmir Dhruv C Katoch – CLAWS JOURNAL

7
NON PERMANENT RESIDENT DISCRIMINATED ON RELIGION, CATSE OR SEX

Non permanent resident are discriminated on Religion ,Caste ,Place of Birth and Sex

PLACE OF BIRTH
CONSTITUTION OF INDIA
ARTICLE 15(1)-EQUALITY OF OPPOURNITY FOR EMPLOYEMENT
There was Petition filled by the Radhika Gill, Jammu and Kashmir Athlete , Eklavya , MA in
Political Science From Jammu University and Gharu Bhatti, who is the president of the Valmiki
Samaj Trust and other 40000 person belonging to Second, Third and Fourth Generation of 272
Safai Karamchari who moved from Gurdaspura and Amritsar in Punjab settlement in Jammu
City back in 1947 the promise that they would be accorded the status of permanent residents of
J&K and given all the rights enjoyed by the people there. Modifications were also made in the
J&K Civil Services Rules to accommodate the families in the state. However, a clause was
inserted in the rules that barred these sweepers from switching to any other profession.
Everything went well for the first generation of the community, as along with regular jobs, they
were provided free housing, civic amenities, ration cards, schooling, etc. But when their families
expanded and the new generation wanted to go for higher studies and build careers in different
fields, they faced the daunting task of proving their domicile.
When they approached the authorities to get issued permanent resident certificates (PRCs) in
their favour, their requests were summarily rejected on the basis of provisions such as Article
35A and Section 6 of the J&K Constitution and the above-said clause in the State Service
Rules4.
In The Case Of Radhika Gill
Radhika as an Athlete perform well in 14 Athletic meet and She also performed well in Central
Forces rally held in Jammu ,but was denied but was denied a job as she could not produce a
PRC.
When she Approached to the authority for the certificates They denied on the ground that on She
is only eligible for the job of a sweeper as per the provisions of Article 35A.
In The case of Ekluvya
After graduating, when he applied for a post-graduation course at the local university, he was
asked to produce his domicile certificate. When he approached the authorities, they parroted the
same reasons for not being able to issue on
In the case of Gharu Bhatti who is the president of the Valmiki Samaj Trust

4
www.sundayguardianlive.com

8
He said when they used to go around cleaning the city, they were being attacked by the local
agitators. “We used to go out in groups of 10 or more and J&K Police used to escort us. When
they were in need, they protected us

RIGHT TO AQUIRE RROPERTY-HOLD AND DISPENSE OF PROPERTY ACT 19(1)(F)

No One can Buy a Properrty If he it’s a Non Resident Member of Jammu and Kashmir not even
the Union President and Prime Minister can buy an inch of land in the State.
Right To Property in Jammu and Kashmir has many cases in which Property of women has to
lost his ancestors property if she married to an non Jammu and Kashmir men
Parabhjit Kour Modi, who has been continuously living and working in the state after her
marriage, along with her non-J&K resident husband and two children, who plead that Section 6
of the State Constitution be declared ultra vires of the Constitution of India.
The response to the above petition by the then Law Secretary Mr Mohammad Ashraf Mir merely
confirmed the discrimination. “Legally and technically”, he said, “her children are the children of
her husband who is from a different state; are not entitled to the permanent resident certificate or
the benefits consequent thereupon.”
Earlier, women such as Parabhjit Kour Modi used to completely lose the ‘permanent resident
status’. After a long legal battle, in 2002, the women of the state won the right to retain their
permanent resident status after marriage. But the discrimination continues— because their
children are still not eligible for the PRC, which means they cannot get admissions to
professional colleges and cannot apply for state government jobs. They also cannot inherit their
mother’s property or buy property themselves. Such a situation is particularly traumatic and
extraordinarily painful for women who marry ‘outsiders’ and later get widowed or divorced.
They face added trauma as their children have no future in the state of J&K.5
It is also a travesty of justice that the Balmikis and Gorkhas who have been staying in the state
for generations as also the West Pakistan refugees have been denied the permanent resident
status with all its attendant benefits.
RIGHT TO VOTE
Right to vote is not a Fundamental Right Nor Constitutional Right but Merely a Satutory or
Legal Right
ARTICLE 325 –CONSTITUTION OF INDIA
No Person to be Ineligible for inclusion in or to Claim to be included in a Special election roll on
the ground of Religion, Place, Caste or Sex
Sec 139 of J&K Constitution
There shall be one General electoral roll for every territorial constituency for elections to either
house of the legislature and no person shall be ineligible for inclusion in any such roll or claim to

5
Article 35A and the Future of Stability in Kashmir Dhruv C Katoch – CLAWS JOURNAL

9
be included in any special elect roll for any such constituency on grounds only of religion, race,
caste, sex or any of them.
Democracy denotes people’s power and equal participation of all citizen in the polity .This
section prohibits discrimination on the ground of religion, race, caste or sex and is important in
maintaining the secular character of the provision shall have adverse impact on democratic polity
of the state. Only such person who are permanent resident of the state within the meaning of
section of the Constitution of Jammu and Kashmir have the right to be included in the electoral
roll prepared for election to the State Legislature, to the local bodies and other institutions .Only
a permanent resident can become a member of the Legislature, Minister or Chief Minister in the
State of Jammu and Kashmir.
The person who are not permanent resident of the state but are residing within the terriority of
the state have a right to be included in the special electoral roll prepared for election to the
parliament6

RIGHT TO FREE AND COMPULSORY EDUCATION

The State shall endeavor
(a)to secure to every permanent resident the right to free education up to the University Standard
(b)to provide,within a period of ten years from the commencement of this Constitution
,Compulsory education for all children until they complete the age of fourteen years
(c) to ensure to all workers and employees adequate facilities for adult education and part –time
technical ,professional and vocational courses
(This Section corresponds to the article 45 of the Constitution of India)
The State is enjoined upon to secure to the permanent resident the right to fee education up to the
university standard. There is no such provisions in the Constitution of India .The students who
are not permanent resident of the sate cannot avail this privilege of free education and the state
may require them to pay the prescribed fee

6
Prof .S.K.Sharma,The Constitution of Jammu & Kashmir,(Universal Law Publishing Co2011)92

10
WHETHER WOMEN ARE NOT GIVEN EQUAL RIGHT AND THEY ARE
DISCRIMINATED ON THEIR SEX
Right to Marry by choice is questioned here because in Jammu and Kashmir constitution says
that “If a woman marries to person who non-resident of J&K will lose his status of Permanent
Resident from the state and inherit and acquire immovable property from the state or get
scholarship and employment etc in the state
There are certain cases happen and a writ petition was filed :-
PRAKASH V/S MST SHAHNI7
 Mst Shahni who was a permanent resident of the state had married to one Pohu Ram who
was a resident of Pul Bijoyan ,Tehsil Sialkot (British India) and had come as a refugee to
the State of Jammu and Kashmir and formed part of British India before Partition and is
now a part of Pakistan
 Relying on section 10 of the British Nationality and Status of Aliens Act ,1914,the
Division Bench of Jammu and Kashmir High Court observed that a married woman
acquires the ‘domicile’ of her husband ,if she had not the same domicile before marriage
 The Division Bench had not adverted to the controversy in issue with reference to section
6 of the State Constitution
 Further reading of the Judgment shows that when respondents counsel sought to argue
that a female acquires the status of a permanent resident being the descent of a state
subject and relied on Note-II of the Notification I-L /84 ,dated 20-04-1927 in this
 NOTE-II-“The descendants of the person who have secured the status of any class of the
state subject will be entitled to become the State Subject of the same Class For example,
if A is declared a State Subject of Class-II his sons and grandsons will ipso facto acquire
the status of the same Class-II and not of Class-I ”
 “In the view of what has been already sated that a female takes the domicile of her
husband on marriage, this explanation has no application to the case of the
respondent, Mst Shahni. If she had not married a person who was a resident of
another place outside the state ,she could have no doubt claimed the status of her
father, but on her marriage she lost her status in the state and acquired a new status
of being a resident of Sialkot”8

And another Famous case was

STATE OF JAMMU AND KASHMIR V. SUSHEELA SAWHNEY9

 In this case Dr Susheela Sawhney challenged the selection of Dr Ravinder Maadan to the
post of Assistant Professor in the Department of Obstetrics and Gynecology
Govt. Medical College, Jammu. Dr. Ravinder Maadan was selected for the above said
post. Dr. Susheela Sawhney challenged the selection of Dr. Ravinder Maadan on the
ground that she was married to a non-State Subject.

7
Prakash v.Mst Shahni [1965] J&K 83:1965 Kash LJ 85
8
Prakash v.Mst Shahni [1965] AIR J&K 83: 1965 Kash LJ 85
9
State of Jammu and Kashmir v. Susheela Sawhney[2003]AIR J&K 83:2003(4) Ind LD 217

11
 "Whether the daughter of a permanent resident of the state of Jammu & Kashmir
marrying a Non Permanent resident loses her status as a permanent resident of the State
of Jammu & Kashmir, to hold , inherit and acquire immovable property in the state ?

 “In the fact the loss or absence of status as a permanent resident of the state of Jammu
and Kashmir disentitles a person not only in respect of acquisition of immovable property
in the state, but also in respect of employment in the state and the right to scholarship and
such other forms of aid as the state government may provide”.

 Whether the daughter of a permanent resident of State of Jammu & Kashmir losses her
status as a permanent resident of the state of Jammu & Kashmir on her marriage with a
person, who is not a permanent resident of the State of Jammu & Kashmir ? "

 In this the majority opinion held that a daughter of a permanent resident marrying a non-
permanent resident will not lose the status of permanent resident of the state of Jammu
and Kashmir. It she will be entitled to all the civil and political rights within the state to
which the permanent resident are entitled . She can be registered as a voter and can
become as a voter and become a member of State Legislature .A woman permanent
resident who is already in job will not lose her job status on marrying a non-permanent
resident.

 But there are certain cases issues which remained unanswered in this judegement .For
example a woman who owns property before marriage or acquires property aafter her
marriage with a non-permanent resident ,whether her successors ,i.e., children and
husband who will inherit her property consequent upon her death will aquire the status of
the permanent resident?

 In the ordinary course of action the personal law ,the property would be inherited by her
children ,if any ,any may be by her non-permanent resident husband too. Under Islamic
law property develops upon successors according to the prescribed principle of
inheritance and these principle do not reconginise citizenship or permanent residency as
the basis of the property .Similarly, under the Hindu law ,parties inherit property
according to the Hindu Succession Act.

 But the question is whether her children or the husband or any other person who inherits
the property of such woman acquires the status of a permanent resident? The children
will acquire the status of their father and not that of their mother .But having inherited
immovable property, whether they acquire the status of a permanent resident on the
premises that they own immovable property within the State? Still the answer will be in
negative and such person will not be entitled to the status of permanent residency.

 This constitutes invidious discrimination towards the woman and her children and
husband vis-à-vis a male permanent resident who in case marries to a non-permanent
resident female , she and children begotten through her become permanent resident of the
state and are entitled to all the rights and privilege associated with the permanent
residency .Thus, this judgment is incomplete in a sense that it does not secure complete

12
 equality to a woman as envisaged in the Constitution and the vires of the aforesaid issues
it is submitted cannot sustain the test of constitutionality

IF ARTICLE 35 A GOES DOWN WHAT CONSECQUENCES THE STATE WILL

FACE

If 35 A goes down that consequences that will face by Central and state government

 Central Government shall lose their control from Jammu and Kashmir and there will be a
war like situation between the state and Central government to remove their forces from
the state and also they cannot imposes Emergency provision if the situation become worst
 It will divide into three parts – Jammu, Kashmir and Ladakh, and the major impact will
be going to Jammu and Ladakh. In Kashmir, the era of protests and uncertainty has
neither stopped and is unlikely to end in near future. Whoever is planning to benefit from
the revocation of this Article, has her/his eyes are on Ladakh and Jammu, where
possibilities increase
 Central Government may face the terrorism problem more and there will spot for terrorist
and they can operate from there and make destructive changes in the country.
 Central Government law will not be apply anymore in the state and if the court rule hat
Constitutional Application Orders are invalid, such a judgment will have to be made
applicable to all the Constitutional Application Orders from 1950 till date.

From the point of view from State Government and J&K Resident
 State Government cannot control the entire region because of the Wider Range and not
having enough army to control the adverse effect that will be given by neighboring
countries.
 The people in the state can be influenced by anyone because of lack of education and
their religion point of view also
 The Resident want to share their land from outside people and they also want to share
scholarship and other basic things that are firstly was not share
 The Government jobs can be open for all other people other than the state people.
 The person of West–Pakistani Refugee will get there permanent resident status.
 Women’s will not lose their permanent resident status after their marriage to outside men
of the State.
 Right to Education will now be Fundamental Right after the removal of 35 A

13
 CONCLUSION

If 35(A) goes down there will be lot of difficulties face by Central and State Government
as well. As if now I fell that 35 A needs some changes and amendment should be done
and there should be an added Right to education as fundamental right, women shall not
lose status after marrying to a non-state men and there will no discrimination on their
caste. I think so if the political parties don’t play politics and the matter can be easily be
sought out
very easily and by these kind of things religious sentiment are also heart by the people
because of the politics played by the party and there are also got anger for the kind of
behavior that the political leaders are showing and by this the youth is misleading from
their path and their brainwashing is also done by the terrorist organization and they are
saying that you want to fight for your country and and other things and youth are accepting
it because of lack of education and other basic necessities they are not getting because of
the restriction and also the war which is going on for 35(A) to remove from the constitution
because it is not constitutionally valid and by the article is discriminated on caste,sex and
place. The hearing is going on and let’s see what judgment will pass by the Supreme Court.

14
 BIBLOGRAPHY

BOOKS
1. The Constitution of Jammu & Kashmir-Prof.S.K.Sharma
2. The Constitution of Jammu & Kashmir-Prof A.S.Anand

JOURNAL
1. CLAWS JOURNAL

WEBSITES
1. www.pgurus.com
2. www.sundayguardianlive.com
3. www.greaterkashmir.com

NEWSPAPER
1. THE HINDU
2. THE TIMES OF INDIA

15