Article 35A of the Constitution of India
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Article 35A of the Indian Constitution was an article that empowered the
The provisions facilitated by the Article 35A and the state's permanent resident laws were criticised over the years for their discriminatory nature, including the hardships imposed on immigrant workers, refugees from West Pakistan, and the State's own female residents, who could lose their permanent resident status by marrying out of state.
On 5 August 2019, the President of India Ram Nath Kovind issued a new Presidential Order, whereby all the provisions of the Indian Constitution were made to apply to the State without any special provisions. This implied that the State's separate Constitution stood inoperative, including the privileges granted by the Article 35A.[3]
Background
Prior to 1947,
Following the
In a statement to the Lok Sabha on the Delhi agreement, the Indian prime minister Jawaharlal Nehru explained:[9]
The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time past, in the Maharaja's time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there. And that continues. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Now they want to vary the old Maharaja's laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. However, we agree that this should be cleared up. The old state's subjects definition gave certain privileges regarding this acquisition of land, the services, and other minor things, I think, State scholarships and the rest.
So, we agreed and noted this down: 'The State legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State, more especially in regard to the acquisition of immovable property, appointments to services and like matters. Till then the existing State law should apply.'
Following the adoption of the provisions of the Delhi Agreement by the
Text
"Saving of laws with respect to permanent residents and their rights. — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:[2]
(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
- (i) employment under the State Government;
- (ii) acquisition of immovable property in the State;
- (iii) settlement in the State; or
- (iv) right to scholarships and such other forms of aid as the State Government may provide,
shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part."
Enactment
The Constitution (Application to Jammu and Kashmir) Order, 1954 was issued by President
The state was empowered, both in the Instrument of Accession and the Article 370, to decree exceptions to any extension of the Indian Constitution to the state, other than in the matter of ceded subjects. So Article 35A wa seen as an exception authorised by the Article 370, clause(1)(d).[10][9][12]
Permanent Residents
The
The State Constituent Assembly incorporated these discriminatory provisions under Section 51 (Qualifications for membership of the Legislature – "A person shall not be qualified to be chosen to fill a seat in the Legislature unless he is a Permanent Resident of the State"), Section 127 (Transitional provisions – "Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as service or post under the State, shall continue in force so far-as consistent with the provisions of this Constitution") and Section 140 ("The elections to the Legislative Assembly shall be on the basis of adult suffrage; that is to say, every person who is a permanent resident of the State and who is not less than Eighteen years of age on such date ..."), etc.[citation needed]
As a result of these provisions, no person who was not a Permanent Resident of Jammu and Kashmir could own property in Jammu and Kashmir, obtain a job in the Jammu and Kashmir Government, join any professional college run by government of Jammu and Kashmir, or get any form of government aid from government funds.[citation needed]
Revocation of special status and domicile law
On 5 August 2019, the Union Government revocated the special status granted to Jammu and Kashmir under the Article 370 through a Presidential Order, and made the entire Constitution of India applicable to the state. This implied that the Article 35A stood abolished.[3] Further, the Union Parliament passed legislation reorganising the state into two union territories, one being Jammu and Kashmir, the other Ladakh.
The union territory of Jammu and Kashmir continued under the old laws until 31 March 2020, while being under
According to the order any person who has stayed in Jammu and Kashmir for 15 years or has studied for a period of seven years and appeared in Class 10th/12th examination in the territory will be deemed to have domicile in Jammu and Kashmir.[16] Children of central government officials and others who have served in Jammu and Kashmir for a period of 10 years and their children also have domicile status.[17] A person registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants) can also apply for domicile benefits.[17]
Text of the order:[18]
Domicile for purposes of appointment to any service in Union territory of Jammu and Kashmir.
- ―3A. (1) Any person who fulfils the following conditions shall be deemed to be a domicile of the Union territory of Jammu and Kashmir for the purposes of appointment to any post carrying a pay scale of not more than Level-4 (25500) under the Union territory of Jammu and Kashmir or under a local or other authority (other than cantonment board) within the Union territory of Jammu and Kashmir:-
- (a) who has resided for a period of fifteen years in the Union territory of Jammu and Kashmir or has studied for a period of seven years and appeared in Class 10th /12th examination in an educational institution located in the Union territory of Jammu and Kashmir; or [...]
In the original Order of 31 March, only subordinate posts in the Jammu and Kashmir government were reserved for domiciled residents. The higher level posts were made available to outsiders.[17] Following protests and criticism, a Second Order was issued on 3 April 2020, reserving all posts of Jammu and Kashmir to domiciled residents.[19][20][21] A new order on 19 May called the Jammu and Kashmir Grant of Domicile Certificate (Procedure) Rules 2020 was passed.[22][23]
See also
- Article 370 of the Constitution of India
- Constitution of Jammu and Kashmir
- Instrument of Accession (Jammu and Kashmir)
- Kashmir conflict
- Political integration of India
Notes
References
- ^ a b "Origin of Jammu and Kashmir: Analysis of Article 370 in Present Scenario". LexHindustan. Archived from the original on 12 October 2017. Retrieved 22 March 2017.
- ^ a b "The Constitution (Application to Jammu and Kashmir) Order, 1954" (PDF). Archived from the original (PDF) on 4 August 2016. Retrieved 12 August 2015.
- ^ a b K. Venkataramanan (5 August 2019), "How the status of Jammu and Kashmir is being changed", The Hindu
- ^ Robinson, Body of Victim, Body of Warrior (2013), p. 31.
- ^ Robinson, Body of Victim, Body of Warrior (2013), pp. 34–35.
- ^ Das Gupta, Jammu and Kashmir (2012), p. 54.
- ^ a b Constantin & Kössler, Jammu and Kashmir: A case of eroded autonomy (2014), pp. 126–127.
- ^ a b Das Gupta, Jammu and Kashmir (2012), pp. 198, 211.
- ^ a b c d Noorani, A.G. (14 August 2015). "Article 35A is beyond challenge". Greater Kashmir.
- ^ a b c "JK ready to defend Article 35-A in Supreme Court". Greater Kashmir. 5 November 2015. Archived from the original on 23 March 2017. Retrieved 22 March 2017.
- ^ "What Delhi Agreement of 1952 is all about". Kashmir Reader. 22 September 2016. Archived from the original on 16 March 2017. Retrieved 22 March 2017.
- ^ Raghavan, Srinath (3 August 2017), "Kashmir's Article 35A conundrum: New Delhi must tread carefully", Hindustan Times, archived from the original on 10 August 2017
- ^ Das Gupta, Jammu and Kashmir (2012), pp. 225–226.
- ^ Constantin & Kössler, Jammu and Kashmir: A case of eroded autonomy (2014, p. 126)
- ^ a b Government jobs to be reserved for domiciles of J&K, says Centre, The Hindu, 1 April 2020.
- ^ "Amit Shah reworks Kashmir's domicile law, includes residents for 15 yrs". Hindustan Times. 1 April 2020.
- ^ a b c New Domicile Law Opens J&K State Jobs for Outsiders, Lowest Grade Jobs Reserved for Locals, The Wire, 1 April 2020.
- ^ Jammu and Kashmir Reorganisation (Adaptation of State Laws) Order, 2020 (pg 53). Ministry of Home Affairs, Government of India. Retrieved on 4 April 2020.
- ^ Centre Backtracks, Amends Domicile Order to Reserve Govt Jobs in J&K for Residents, The Wire, 3 April 2020.
- ^ "Domicile rule to apply to all J&K govt posts: Centre amends order after uproar". Hindustan Times. 4 April 2020.
- ^ "Centre notifies amendments to the act providing domicile reservation for govt jobs in Jammu & Kashmir". The Economic Times. 4 April 2020.
- ^ Mir, Shakir (19 May 2020). "J&K Govt's New Domicile Certificate Rules a Move to Undercut Resistance from Kashmiri Officials?". The Wire. Retrieved 20 May 2020.
- ^ "Jammu and Kashmir domicile rules: Centre trying to change demography of UT, claim politcial parties". The New Indian Express. PTI. 19 May 2020. Retrieved 20 May 2020.
Bibliography
- Constantin, Sergiu; Kössler, Karl (2014), "Jammu and Kashmir: A case of eroded autonomy", in Levente Salat; Sergiu Constantin; Alexander Osipov; István Gergo Székely (eds.), Autonomy Arrangements around the World: A Collection of Well and Lesser Known Cases, Romanian Institute for Research on National Minorities, pp. 113–156, ISBN 978-606-8377-30-8
- Cottrell, Jill (2013), "Kashmir: The vanishing autonomy", in Yash Ghai; Sophia Woodman (eds.), Practising Self-Government: A Comparative Study of Autonomous Regions, Cambridge University Press, pp. 163–199, ISBN 978-1-107-29235-2
- Das Gupta, Jyoti Bhusan (2012) [1968], Jammu and Kashmir, Springer, ISBN 978-94-011-9231-6
- ISBN 978-0-19-807408-3
- Robinson, Cabeiri deBergh (2013), Body of Victim, Body of Warrior: Refugee Families and the Making of Kashmiri Jihadists, University of California Press, ISBN 978-0-520-27421-1