SUMERA REHMAN

COLLEGE OF LAW AND LEGAL STUDIES,

TEERTHANKER MAHAVEER UNIVERSITY (MORADABAD)

CONSTITUTIONALITY OF ARTICLE 35A AND 370 OF

CONSTITUTION OF INDIA

The article 35A of Indian constitution empowers the Jammu and Kashmir legislature a power to decide
that who are permanent residents of the state and also empowers them with special rights and privileges in
government jobs, acquisition of property, scholarships and other public welfare.

Article 35A was incorporated in Indian constitution in 1954 by Rajendra Prasad. The provision added in
Indian constitution under article 370 which gives the special status to Jammu and Kashmir. Under article
370(1)(d) the president was allowed to make necessary exceptions and modifications to the Indian
constitution for the benefit of the Jammu and Kashmir.

During the time of independence HARI SINGH the maharaja of Kashmir was not in favour of joining the
Pakistan so he signed the instrument of accession in October 1947 with India. Thus Jammu and Kashmir
became an Indian state but both India and Pakistan continued to claim Kashmir as their individual
property.

The article 35A gives the power to the parliament of Jammu and Kashmir to decide the definition of the
permanent residents of the state. People who lived there before the enactment of the article 35A and living
there from ten years comes under the definition of the permanent resident. These people have the right to
cast vote, to acquire property and jobs. The people living in the refugee camps are not allowed to caste
vote and they cannot apply for the government jobs. The majority of the people living in refugee camps
are from backward classes, their fourth generation also do not comes under the definition of permanent
resident. This article was enacted by the then president Rajendra Prasad and this article is not enacted by
the virtue of article 368 which gives power to the parliament to enact, amend & repeal the law. Thus this
article must declare unconstitutional not only because it was not implemented by the parliament but also it
violates the fundamental rights of the people living in that state apart from permanent residents. Article 14
(Right To Equality) defines that every person is equal in the eyes of law but there are so many disparities
which the statehood is doing such as non resident people are not allowed to cast vote, also not allowed to
engage in government sector jobs and other benefits which are provided to the permanent residents but
not to them.

Article 35A restricts the Indian citizens to acquire properties, to settle in the state and seeking the
employment in the state. If a permanent resident woman married with a person who is non resident then
that woman will lose her rights in property and their children will also become ineligible to claim the
rights in the property of their mother. The Article 35A also badly affects the economical development of
the state.

Article 370 of the Indian constitution drafted in Part XXI provides the autonomous status to the state of
Jammu and Kashmir. It is temporary provision and the President on the recommendation of the
constituent assembly of the state Jammu and Kashmir that Article 370 can be ceases to be operative or
can operate with modifications and exceptions.

The NGO- WE THE CITIZENS filed a writ petition challenging the validity of both article 35A and 370
that the articles is against the spirit of oneness of India as it creates a class within the class of citizens of
India. And also according to the NGO the article 370 was a temporary provision to restore the peace and
harmony in the state of Jammu and Kashmir.

Further the second petition was filed in July 2017 which threw the light on the Jammu and Kashmir
permanent resident woman Charu Wali Khanna a Supreme Court lawyer on the ground that it is
discriminatory towards woman as her daughter was denied as a permanent resident of the state as she
married to the non permanent resident. She argue that article 14 of Indian constitution guarantees
fundamental right to equality before law but article 35A is heavily in the favour of males as they will not
lose their rights of being permanent residents. At this argument it is important to recall the decision of the
high court of the Jammu and Kashmir on October 2002 which helds that women married to non
permanent resident will not lose their rights as permanent resident though their children will not enjoy the
succession rights.

Article 35A with its advantages to the permanent resident of the state results in various disadvantages to
the non permanent resident of the state as it treats them as a second class citizens of the state.

. Non permanent residents are not allowed to acquire the government jobs and also cannot caste vote.
. Scholarships cannot be granted to highly intelligent students.
. It was unconstitutionally inserted by passing article 368 which only provides to parliament to amend the
constitution.
. Article 35A violates the fundamental rights drafted in part III of the constitution especially Article 14
(Right to Equality) and 21 (Right to Life and Personal liberty).

Article 370 was drafted for the purpose to provide special status to the state Jammu and Kashmir where
the central government can only make laws for the state with the concurrence of the state assembly except
matters pertaining to defence, foreign affairs, finance and communication. The effects of the Article 370
is that the fundamental rights, constitution, ownership of property and entire set of laws governing
citizenship is different from the rest of the Indian Union. The Government of India cannot declare
financial emergency under Article 360 but can only declare emergency in case of external aggression and
war in the state of Jammu and Kashmir. In a PIL filed in 2018 raised a question that the Article 370 and
the separate constitution of the state Jammu and Kashmir is arbitrary and unjustifiable and is against the
supremacy of the Constitution on many grounds such as it is conflicting with a motto “ONE NATION,
ONE CONSTITUTION, ONE NATIONAL ANTHEM, ONE FLAG”

The article 306A which was inserted by the constituent assembly of India in October 1949 which was
operative as Article370 in November 1952 gave Jammu and Kashmir a greater autonomy which was
ensured by the Constitution of India. As the state has the power to make own laws, the article itself
somehow responsible for the secessionist movement in the state. People of the state are currently
demanded restoration of autonomy and are protesting against the Indian Government. As the constitution
framers inserted this article I believe that they acknowledged all the facts and deeply understands the
outcomes after drafting it. There are various states which are having special status by the virtue of article
370A(1) such as Pondicherry has its own legislation. The permanent residence living in the state J&K
have the right of self determination which means that they can freely determine their political status and
freely foster their economic and social growth.

In my opinion Article 370 is very much constitutional as the state of Jammu and Kashmir acceded with
the Indian Union on various terms and conditions which the Union of India has accepted and the article
was also inserted in the Constitution of India in which the Article provides special status to the state
Jammu and Kashmir. However I’m totally in dissenting opinion against the article 35A which was the
fruit of the Article 370 . Article 35A violates the fundamental rights of the Indian citizens and people who
are living there as a refugee are barred from acquiring property, cannot be eligible to participate in
government jobs and has no rights to cast vote.