Article 35A was a cause of disagreement and debate between the people of Jammu and Kashmir, especially the Muslim-majority Kashmir Valley, and the central government of India, especially the Hindu nationalist Bharatiya Janata Party (BJP), which came to power in 2014. The supporters of Article 35A maintained that it was vital to protect the particular identity, culture, and demography of Jammu and Kashmir, which had acceded to India under specific terms and guarantees. They also stated that Article 35A was a constitutional acknowledgment of the historical rights and aspirations of the people of Jammu and Kashmir, who had suffered from decades of violence, tyranny, and estrangement. The opponents of Article 35A maintained that it was discriminatory, unlawful, and anti-national. They contended that Article 35A infringed the fundamental rights of equality, liberty, and fraternity inherent in the Constitution of India. They also argued that Article 35A hampered Jammu and Kashmir's integration, prosperity, and security, an integral part of India.
The controversy over Article 35A reached its culmination in August 2019 when the BJP-led government repealed Article 370 and removed the special status of Jammu and Kashmir. This negated Article 35A as well. The administration described its move as a historic step to stop the separatist, terrorism, corruption, and dynastic rule in Jammu and Kashmir. It also promised to bring in a new period of peace, progress, and prosperity for the region’s people. However, the decision was met with significant opposition, criticism, and protests from numerous sources, including political parties, civil society groups, human rights campaigners, and international observers. They criticized the decision as a unilateral, unlawful, and undemocratic assault on the autonomy, dignity, and consent of the people of Jammu and Kashmir. They also raised alarm over the human rights violations, communication blockage, security clampdown, and political detentions that followed the abrogation.
In this blog article, we will study the creation, evolution, impact, and consequences of Article 35A in detail. We shall examine its historical roots, legal features, political elements, social implications, and contemporary state. We will also evaluate its consequences for the future of Jammu, Kashmir, and India.
Historical Background
The roots of Article 35A can be traced back to the princely state of Jammu and Kashmir under British administration. The state was ruled by Maharaja Hari Singh, a Hindu Dogra king who had inherited it from his predecessors. The form contained three separate regions: Jammu, which was mainly Hindu; Kashmir Valley, which was predominantly Muslim; and Ladakh, which was predominantly Buddhist. The state also had a substantial population of Sikhs, Christians, Gujjars, Bakarwals, Paharis, and other ethnic groups.
The state had a unique political identity as a princely state under British suzerainty. Unlike other princely states in India, which were directly managed by British agents, Jammu and Kashmir had a significant degree of autonomy and sovereignty by the Treaty of Amritsar of 1846, which handed the state from the Sikh Empire to the Dogra dynasty. The treaty provided that the British government would not meddle in the state’s internal affairs except for areas relating to foreign policy, defense, and communications. The state also had its flag, constitution, and laws.
The people of Jammu and Kashmir developed a sense of political consciousness and nationalism throughout the early twentieth century. They requested increased representation, rights, and reforms from the Maharaja, who was seen as a repressive and dictatorial monarch. They also wanted protection from external threats, such as Afghan invaders, Pakistani raiders, and Chinese aggressors. They organized several political parties, groups, and organizations to communicate their concerns and goals.
One of the most significant political groupings was the All Jammu and Kashmir Muslim Conference, created in 1932 by Sheikh Abdullah, a charismatic and popular leader of the Kashmiri Muslims. The Muslim Conference aspired to unify the Muslims of Jammu and Kashmir under a united platform and to protect their political, economic, and social rights. It also called for a separate homeland for the Muslims of India, in line with the Two-Nation Theory propounded by the Muslim League, the largest political party of the Indian Muslims.
However, in 1939, Sheikh Abdullah altered the name and doctrine of his party from the Muslim Conference to the National Conference. He did so to widen its popularity and base across all the communities and areas of Jammu and Kashmir. He also affiliated his party with the Indian National Congress, the largest and most prominent political party in India, which was driving the liberation struggle against British colonialism. He rejected the Two-Nation Theory and advocated the idea of a secular and democratic India, where all individuals would have equal rights and opportunities regardless of their religion, caste, or creed.
The National Conference organized a mass movement called the Quit Kashmir Movement in 1946, which advocated the end of Dogra rule and annexing Jammu and Kashmir to India. The campaign was inspired by the Quit India campaign of 1942, which called for the British to leave India. The Maharaja greeted the movement with severe repression and arrested Sheikh Abdullah and other leaders and activists of the National Conference. The motion also encountered opposition from the Muslim League, which wanted Jammu and Kashmir to join Pakistan, a new country formed out of India for the Muslims.
The fate of Jammu and Kashmir became unknown and contested after India won independence from British rule on August 15, 1947. The British administration presented two options to the princely states: join India or Pakistan or remain independent. The Maharaja of Jammu and Kashmir elected to remain neutral and independent, intending to preserve his autonomy and sovereignty. However, his conclusion was unacceptable to India or Pakistan, who claimed Jammu and Kashmir as their intrinsic components.
On October 22, 1947, Pakistan launched a secret effort to invade Jammu and Kashmir with the support of tribal militias from its northwestern frontier. The invaders took major parts of Jammu and Kashmir, including Muzaffarabad, Baramulla, Uri, and Poonch. They also reached the fringes of Srinagar, the capital city of Jammu and Kashmir. The Maharaja’s men were unable to fight or repel the invasion. The Maharaja appealed to India for military assistance to defend his dominion from the invaders.
India agreed to rescue the Maharaja on one condition: that he should submit his state to India. The Maharaja accepted the condition and signed the Instrument of Accession on October 26, 1947. The Instrument of Accession was a legal document that transferred the control of three subjects, defense, external affairs, and communications, from the Maharaja to the Government of India. The Instrument of Accession also stipulated that the other areas, such as internal administration, law and order, finance, and taxes, would stay under the Maharaja’s control until a Constituent Assembly of Jammu and Kashmir was elected and framed a constitution for the state. The Instrument of Accession further provided that the Indian Parliament would not legislate on any topic not transferred by the Instrument of Accession without the state government’s approval.
India sent its forces to Jammu and Kashmir on October 27, 1947, to fight against the Pakistani invaders. This marked the commencement of the first Indo-Pak war over Jammu and Kashmir, which lasted until January 1, 1949, when the United Nations arranged a ceasefire. The ceasefire line split Jammu and Kashmir into two parts: one under Indian authority (called Indian-administered Kashmir) and one under Pakistani control (named Pakistan-administered Kashmir). The UN also passed a resolution that asked for a plebiscite or a referendum in Jammu and Kashmir to determine its final status: whether it wanted to join India or Pakistan or remain independent. However, the referendum never took place due to various reasons, such as Pakistan’s refusal to withdraw its troops from Jammu and Kashmir, India’s insistence on maintaining its legal right over Jammu and Kashmir based on the Instrument of Accession, and China’s occupation of Aksai Chin (a part of Ladakh) in 1962.
Legal Aspects
The legal issues of Article 35A are related to its origin, validity, interpretation, and implications. Article 35A was inserted into the Constitution of India by a presidential order 1954, under Article 370, which gave Jammu and Kashmir a distinct status inside the Indian Union. Article 370 was a transitory and transitional measure that was supposed to unite Jammu and Kashmir into India while preserving its autonomy and ambitions. Article 370 permitted the President of India to apply the articles of the Constitution of India to Jammu and Kashmir with such exceptions and modifications as he judged proper, with the approval of the state administration. Article 370 also enabled the President of India to issue orders from time to time to designate the matters on which the Indian Parliament could legislate for Jammu and Kashmir, with the advice or approval of the state administration.
Article 35A was one such order made by the President of India on May 14, 1954, under Article 370. The Constitution (Application to Jammu and Kashmir) Order, 1954. It implemented most of the provisions of the Constitution of India to Jammu and Kashmir, with significant exclusions and amendments. One of these revisions was the introduction of Article 35A in Part III of the Constitution of India, which deals with fundamental rights. Article 35A read as follows:
"Saving of laws to permanent residents and their rights. – Notwithstanding anything provided in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter adopted by the Legislature of the State,
(a) specifying the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) granting on such permanent residents any special rights and privileges or imposing upon other individuals 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 types of aid as the State Government may provide,
should be void on the premise that it is inconsistent with or takes away or abridges any rights given on the other citizens of India by any provision of this Part."
"The State Legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State, more specifically with the acquisition of immovable property, appointments to services, and related matters.
Article 35A was a constitutional provision that granted special rights and privileges to the permanent residents of Jammu and Kashmir, a state in northern India that was divided into two union territories in 2019. It was added to the Constitution of India by a presidential order in 1954 under Article 370, which gave Jammu and Kashmir a special status within the Indian Union. Article 35A empowered the state legislature of Jammu and Kashmir to define who were the permanent residents of the state and what benefits they were entitled to. These benefits included the right to own property, to get government jobs, to avail of scholarships, and to enjoy other social and economic welfare schemes. Article 35A also barred non-permanent residents from acquiring immovable property or settling permanently in the state.
Article 35A was a source of contention and controversy between the people of Jammu and Kashmir, especially the Muslim-majority Kashmir Valley, and the central government of India, especially the Hindu nationalist Bharatiya Janata Party (BJP), which came to power in 2014. The supporters of Article 35A argued that it was essential to protect Jammu and Kashmir's distinct identity, culture, and demography, which had acceded to India under certain conditions and guarantees. They also claimed that Article 35A was a constitutional recognition of the historical rights and aspirations of the people of Jammu and Kashmir, who had suffered from decades of violence, oppression, and alienation. The opponents of Article 35A contended that it was discriminatory, unconstitutional, and anti-national. They alleged that Article 35A violated the fundamental rights of equality, liberty, and fraternity enshrined in the Constitution of India. They also asserted that Article 35A hindered the integration, development, and security of Jammu and Kashmir, an integral part of India.
The debate over Article 35A reached its climax in August 2019 when the BJP-led government abrogated Article 370 and revoked the special status of Jammu and Kashmir. This effectively nullified Article 35A as well. The government justified its decision as a historic step to end the separatism, terrorism, corruption, and dynastic rule in Jammu and Kashmir. It also promised to usher in a new era of peace, progress, and prosperity for the region’s people. However, the move was met with widespread opposition, criticism, and protests from various quarters, including political parties, civil society groups, human rights activists, and international observers. They denounced the decision as a unilateral, illegal, and undemocratic assault on the autonomy, dignity, and consent of the people of Jammu and Kashmir. They also expressed concern over the human rights violations, communication blockade, security clampdown, and political detentions that followed the abrogation.
Article 35A was based on the Delhi Agreement of 1952, a pact between Prime Minister Jawaharlal Nehru and Sheikh Abdullah, who had become the Prime Minister of Jammu and Kashmir after being released from prison in 1948. The Delhi Agreement resulted from negotiations between leaders on various issues concerning Jammu and Kashmir’s relationship with India. One of these issues was the citizenship rights of the people of Jammu and Kashmir.
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