Article 35A of the Constitution of India and question of Permanent Residents of the State

Article 35A, incorporated in the Constitution by a 1954 Presidential Order, confers special status to the permanent residents of Jammu and Kashmir, and bars people from outside the state from acquiring any immovable property in the state.

Constitutional provision

Article 35A:- 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:

(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.

APPENDIX I

THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR)
ORDER, 1954

C.O. 48

In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the Government of the State of Jammu and Kashmir, is pleased to make the following Order:-

  1. (1) This Order may be called the Constitution (Application to Jammu and Kashmir) Order, 1954.
    (2) It shall come into force on the fourteenth day of May, 1954 and shall thereupon supersede the Constitution (Application to Jammu and Kashmir) Order, 1950.
  2. The provisions of the Constitution as in force on the 20th day of June, 1964 and as amended by the Constitution (Nineteenth Amendment) Act, 1966, the Constitution (Twenty-first Amendment) Act, 1967, section 5 of the Constitution (Twenty-third Amendment) Act, 1969, the Constitution (Twenty-fourth Amendment) Act, 1971, section 2
    of the Constitution (Twenty-fifth Amendment) Act, 1971, the Constitution (Twenty-sixth Amendment) Act, 1971, the Constitution (Thirtieth Amendment) Act, 1972, section 2 of the Constitution (Thirty-first Amendment) Act, 1973, section 2 of the Constitution
    (Thirty-third Amendment) Act, 1974, sections 2, 5, 6 and 7 of the Constitution (Thirty-eighth Amendment) Act, 1975, the Constitution (Thirty-ninth Amendment) Act, 1975, the Constitution (Fortieth Amendment) Act, 1976, sections 2, 3 and 6 of the Constitution
    (Fifty-second Amendment) Act, 1985 and the Constitution (Sixty-first Amendment) Act, 1988 which, in addition to article 1 and article 370, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows:-

(1) THE PREAMBLE.

(2) PART I.
To article 3, there shall be added the following further proviso, namely:-

“Provided further that no Bill providing for increasing or diminishing
the area of the State of Jammu and Kashmir or altering the name or
boundary of that State shall be introduced in Parliament without the
consent of the Legislature of that State.”.

(3) PART II.
(a) This Part shall be deemed to have been applicable in relation to
the State of Jammu and Kashmir as from the 26th day of January, 1950.
(b) To article 7, there shall be added the following further proviso,
namely:-
“Provided further that nothing in this article shall apply to a
permanent resident of the State of Jammu and Kashmir who, after having
so migrated to the territory now included in Pakistan, returns to the
territory of that State under a permit for resettlement in that State
or permanent return issued by or under the authority of any law made
by the Legislature of that State, and every such person shall be
deemed to be a citizen of India.”.

(4) PART III.
(a) In article 13, references to the commencement of the constitution shall be construed as references to the commencement of this Order.
(c) In clause (3) of article 16, the reference to the State shall be construed as not including a reference to the State of Jammu and Kashmir.
(d) In article 19, for a period of _572[_573[twenty-five] years] from
the commencement of this Order:-
(i) in clauses (3) and (4), after the words “in the interests of”, the
words “the security of the State or” shall be inserted;
(ii) in clause (5), for the words “or for the protection of the
interests of any Scheduled Tribe”, the words “or in the interests of
the security of the State” shall be substituted; and
(iii) the following new clause shall be added, namely:-
(7) The words "reasonable restrictions" occurring in clauses (2),
(3), (4) and (5) shall be construed as meaning such restrictions as
the appropriate Legislature deems reasonable.'.
(e) In clauses (4) and (7) of article 22, for the word "Parliament",
the words "the Legislature of the State" shall be substituted.
(f) In article 31, clauses (3), (4) and (6) shall be omitted; and for
clause (5), there shall be substituted the following clause, namely:-
"(5) Nothing in clause (2) shall affect-
(a) the provisions of any existing law; or
(b) the provisions of any law which the State may hereafter make-
(i) for the purpose of imposing or levying any tax or penalty; or
(ii) for the promotion of public health or the prevention of danger to
life or property; or
(iii) with respect to property declared by law to be evacuee
property.".
(g) In article 31A, the proviso to clause (1) shall be omitted; and
for sub-clause (a) of clause (2), the following sub-clause shall be
substituted, namely:-
(a) “estate” shall mean land which is occupied or has been let for
agricultural purposes or for purposes subservient to agriculture, or
for pasture, and includes-
(i) sites of buildings and other structures on such land;
(ii) trees standing on such land;
(iii) forest land and wooded waste;
(iv) area covered by or fields floating over water;
(v) sites of jandars and gharats;
(vi) any jagir, inam, muafi or mukarrari or other similar grant, but
does not include-
(i) the site of any building in any town, or town area or village
abadi or any land appurtenant to any such building or site;
(ii) any land which is occupied as the site of a town or village; or
(iii) any land reserved for building purposes in a municipality or
notified area or cantonment or town area or any area for which a town
planning scheme is sanctioned.’.
[(h) In article 32, clause (3) shall be omitted.]
(i) In article 35-
(i) references to the commencement of the Constitution shall be
construed as references to the commencement of this Order;
(ii) in clause (a) (i), the words, brackets and figures “clause (3) of
article 16, clause (3) of article 32” shall be omitted; and
(iii) after clause (b), the following clause shall be added, namely:-
“(c) no law with respect to preventive detention made by the
Legislature of the State of Jammu and Kashmir, whether before or after
the commencement of the Constitution (Application to Jammu and
Kashmir) Order, 1954, shall be void on the ground that it is
inconsistent with any of the provisions of this part, but any such law
shall, to the extent of such inconsistency, cease to have effect on
the expiration of _575[_576[twenty-five] years] from the commencement
of the said Order, except as respects things done or omitted to be
done before the expiration thereof.”.
(j) After article 35, the following new article shall be added, namely:-

35A. 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,-
(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.”.

(5) PART V.

577[(a) For the purposes of article 55, the population of the State of Jammu and Kashmir shall be deemed to be sixty-three lakhs.
(b) In article 81, for clauses (2) and (3), the following clauses shall be substituted, namely:-
“(2) For the purposes of sub-clause (a) of clause (1),-
(a) there shall be allotted to the State six seats in the House of the
People;
(b) the State shall be divided into single member territorial
constituencies by the Delimitation Commission constituted under the
Delimitation Act, 1972, in accordance with such procedure as the
Commission may deem fit;
(c) the constituencies shall, as far as practicable, be geographically
compact areas, and in delimiting them regard shall be had to physical
features, existing boundaries of administrative units, facilities of
communication and public convenience; and
(d) the constituencies into which the State is divided shall not
comprise the area under the occupation of Pakistan.
(3) Nothing in clause (2) shall affect the representation of the State
in the House of the People until the dissolution of the House existing
on the date of publication in the Gazette of India of the final order
or orders of the Delimitation Commission relating to the delimitation
of parliamentary constituencies under the Delimitation Act, 1972.
(4) (a) The Delimitation Commission shall associate with itself for
the purpose of assisting it in its duties in respect of the State,
five persons who shall be members of the House of the People
representing the State.
(b) The persons to be so associated from the State shall be nominated
by the Speaker of the House of the People having due regard to the
composition of the House.
(c) The first nominations to be made under sub-clause (b) shall be
made by the Speaker of the House of the People within two months from
the commencement of the Constitution (Application to Jammu and
Kashmir) Second Amendment Order, 1974.
(d) None of the associate members shall have a right to vote or to
sign any decision of the Delimitation Commission.
(e) If owing to death or resignation, the office of an associate
member falls vacant, it shall be filled as soon as may be practicable
by the Speaker of the House of the People and in accordance with the
provisions of sub-clauses (a) and (b).”.]

_578[(c) In article 133, after clause (1), the following clause shall be inserted, namely:-

`(1A) The provisions of section 3 of the Constitution (Thirtieth Amendment) Act, 1972, shall apply in relation to the State of Jammu and Kashmir subject to the modification that references therein to “this Act”, “the commencement of this Act”, “this Act had not been
passed” and “as amended by this Act” shall be construed respectively as references to “the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1974”, “the commencement of the said Order”,
“the said Order had not been made” and “as it stands after the
commencement of the said Order”.’.]

_579[(d)] In article 134, clause (2), after the words “Parliament may”, the words “on the request of the Legislature of the State” shall be inserted.
_579[(e)] Articles 135 _580*** and 139 shall be omitted.
_581* * * * *
_582[(5A) PART VI.
_583[(a) Articles 153 to 217, article 219, article 221, articles 223,
224, 224A and 225 and articles 227 to 237 shall be omitted.]
(b) In article 220, references to the commence
(c) In article 250, for the words “to any of the matters enumerated in
the State List”, the words “also to matters not enumerated in the
Union List” shall be substituted.
_593* * * * *
(e) To article 253, the following proviso shall be added,
namely:-
“Provided that after the commencement of the Constitution (Application
to Jammu and Kashmir) Order, 1954, no decision affecting the
disposition of the State of Jammu and Kashmir shall be made by the
Government of India without the consent of the Government of that
State.”.
_594* * * * *
_595[(f)] Article 255 shall be omitted.
_595[(g)] Article 256 shall be re-numbered as clause (1) of that
article, and the following new clause shall be added thereto, namely:-
“(2) The State of Jammu and Kashmir shall so exercise its executive
power as to facilitate the discharge by the Union of its duties and
responsibilities under the Constitution in relation to that State;
and in particular, the said State shall, if so required by the Union,
acquire or requisition property on behalf and at the expense of the
Union, or if the property belongs to the State, transfer it to the
Union on such terms as may be agreed, or in default of agreement, as
may be determined by an arbitrator appointed by the Chief Justice of
India.”.
_596* * * * *
_597[(h)] In clause (2) of article 261, the words “made by Parliament” shall be omitted.

(7) PART XII.
_598* * * * *
_599[(a)] Clause (2) of article 267, article 273, clause (2) of article 283 _600[and article 290] shall be omitted.
_599[(b)] In articles 266, 282, 284, 298, 299 and 300, references to the State or States shall be construed as not including references to the State of Jammu and Kashmir.
_599[(c)] In articles 277 and 295, references to the commencement of the Constitution shall be construed as references to the commencement of this order.

(8) PART XIII.
_601***In clause (1) of article 303, the words “by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule” shall be omitted.
_601* * * * *

(9) PART XIV.
_602[In article 312, after the words “the States”, the brackets and
words “(including the State of Jammu and Kashmir)” shall be inserted.]
_603[(10) PART XV.
(a) In clause (1) of article 324, the reference to the Constitution
shall, in relation to elections to either House of the Legislature of
Jammu and Kashmir, be construed as a reference to the Constitution of
Jammu and Kashmir.
_604[(b) In articles 325, 326, 327 and 329, the reference to a State
shall be construed as not including a reference to the State of Jammu
and Kashmir.
(c) Article 328 shall be omitted.]
(d) In article 329, the words and figures “or article 328” shall be
omitted.]]
_605[(e) In article 329A, clauses (4) and (5) shall be omitted.]

(11) PART XVI.
_606* * * * *
_607[(a)] Articles 331, 332, 333, _608[336 and 337] shall be omitted.
_607[(b)] In articles 334 and 335, references to the State or the
States shall be construed as not including references to the State of
Jammu and Kashmir.
_609[(c) In clause (1) of article 339, the words “the administration
of the Scheduled Areas and” shall be omitted.]

(12) PART XVII.
The provisions of the Part shall apply only in so far as they relate
to-
(i) the official language of the Union;
(ii) the official language for communication between one State and
another, or between a State and the Union; and
(iii) the language of the proceedings in the Supreme Court.

(13) PART XVIII.
(a) To article 352, the following new clause shall be added, namely:-
“_610[(6)] No Proclamation of Emergency made on grounds only of
internal disturbance or imminent danger thereof shall have effect in
relation to the State of Jammu and Kashmir (except as respects article
354) _611[unless-
(a) it is made at the request or with the concurrence of the
Government of that State, or
(b) where it has not been so made, it is applied subsequently by the
President to that State at the request or with the concurrence of the
Government of that State.]”;.
_612[(b) In clause (1) of article 356, references to provisions or
provision of this Constitution shall, in relation to the State of
Jammu and Kashmir, be construed as including references to provisions
or provision of the Constitution of Jammu and Kashmir.
_613[(bb) In clause (4) of article 356, after the second proviso, the
following proviso shall be inserted, namely:-
“Provided also that in the case of the Proclamation issued under
clause (1) on the 18th day of July, 1990 with respect to the State of
Jammu and Kashmir, the reference in the first proviso to this clause
to “three years” shall be construed as a reference to _614[“seven
years”].]
(c) Article 360 shall be omitted.]

(14) PART XIX.
_615* * * * *
_616[(a)] _617[Article 365] shall be omitted.
_618* * * * *
_616[(b)] To article 367, there shall be added the following clause,
namely:-
“(4) For the purposes of this Constitution as it applies in relation
to the State of Jammu and Kashmir-
(a) references to this Constitution or to the provisions thereof shall
be construed as references to the Constitution or the provisions
thereof as applied in relation to the said State;
_619[(aa)] references to the person for the time being recognised by
the President on the recommendation of the Legislative Assembly of the
State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the
advice of the Council of Ministers of the State for the time being in
office, shall be construed as references to the Governor of Jammu and
Kashmir;
(b) references to the Government of the said State shall be construed
as including references to the Governor of Jammu and Kashmir acting on
the advice of his Council of Ministers:
Provided that in respect of any period prior to the 10th day of April,
1965, such references shall be construed as including references to
the Sadar-i-Riyasat acting on the advice of his Council of Ministers;]
(c) references to a High Court shall include references to the High
Court of Jammu and Kashmir;
_620* * * * *
_621[(d)] references to the permanent residents of the said State
shall be construed as meaning persons who, before the commencement of
the Constitution (Application to Jammu and Kashmir) Order, 1954 were
recognised as State subjects under the laws in force in the State or
who are recognised by any law made by the Legislature of the State as
permanent residents of the State; and
_622[(e) references to a Governor shall include references to the
Governor of Jammu and Kashmir:
Provided that in respect of any period prior to the 10th day of April,
1965, such references shall be construed as references to the person
recognised by the President as the Sadar-i-Riyasat of Jammu and
Kashmir and as including references to any person recognised by the
President as being competent to exercise the powers of the
Sadar-i-Riyasat.]”.

(15) PART XX.
_623[(a) _624[To clause (2) of article 368], the following proviso
shall be added, namely:-
“Provided further that no such amendment shall have effect in relation
to the State of Jammu and Kashmir unless applied by order of the
President under clause (1) of article 370.”.
_625[(b) After clause (3) of article 368, the following clause shall
be added, namely:-
“(4) No law made by the Legislature of the State of Jammu and Kashmir
seeking to make any change in or in the effect of any provision of the
Constitution of Jammu and Kashmir relating to-
(a) appointment, powers, functions, duties, emoluments, allowances,
privileges or immunities of the Governor; or
(b) superintedence, direction and control of elections by the Election
Commission of India, eligibility for inclusion in the electoral rolls
without discrimination, adult suffrage and composition of the
Legislative Council, being matters specified in sections 138, 139, 140
and 50 of the Constitution of Jammu and Kashmir,
shall have any effect unless such law has, after having been reserved
for the consideration of the President, received his assent.”.]

(16) PART XXI.
(a) Articles 369, 371, _626[371A], _627[372A], 373, clauses (1), (2),
(3) and (5) of article 374 and _628[articles 376 to 378A and 392]
shall be omitted.
(b) In article 372-
(i) clauses (2) and (3) shall be omitted;
(ii) references to the laws in force in the territory of India shall
include references to hidayats, ailans, ishtihars, circulars, robkars,
irshads, yadashts, State Council Resolutions, Resolutions of the
Constituent Assembly, and other instruments having the force of law in
the territory of the State of Jammu and Kashmir; and
(iii) references to the commencement of the Constitution shall be
construed as references to the commencement of this Order.
(c) In clause (4) of article 374, the reference to the authority
functioning as the Privy Council of a State shall be construed as a
reference to the Advisory Board constituted under the Jammu and
Kashmir Constitution Act, 1996 and references to the commencement of
the Constitution shall be construed as references to the commencement
of this Order.

(17) PART XXII.
Articles 394 and 395 shall be omitted.
(18) FIRST SCHEDULE.
(19) SECOND SCHEDULE.
_629* * * * *
(20) THIRD SCHEDULE.
Forms V, VI, VII and VIII shall be omitted.
(21) FOURTH SCHEDULE.
_630[(22) SEVENTH SCHEDULE.
(a) In the Union List-
(i) for entry 3, the enty “3. Administration of cantonments.” shall
be substituted;
_631[(ii) entries 8, 9 _632[and 34], _633*** entry 79, and the
words “Inter-State migration” in entry 81 shall be omitted;]
_634* * * * *
_635[(iii) in entry 72, the reference to the States shall be
construed,-
(a) in relation to appeals to the Supreme Court from any decision or
order of the High Court of the State of Jammu and Kashmir made in an
election petition whereby an election to either House of the
Legislature of that State has been called in question, as including a
reference to the State of Jammu and Kashmir;
(b) in relation to other matters, as not including a reference to that
State]; _636[and]
_637[(iv) for entry 97, the following entry shall be substituted,
namely:-
“_638[97. Prevention of activities-
(a) involving terrorist acts directed towards overawing the Government
as by law established or striking terror in the people or any section
of the people or alienating any section of the people or adversely
affecting the harmony amongst different sections of the people;
(b) directed towards disclaiming, questioning or disrupting the
sovereignty and territorial integrity of India or bringing about
cession of a part of the territory of India or secession of a part of
the territory of India from the Union or causing insult to the Indian
National Flag, the Indian National Anthem and this Constitution;
taxes on foreign travel by sea or air, on inland air travel and on
postal articles, including money orders, phonograms and telegrams.
Explanation.- In this entry, “terrorist act” has the same meaning
as in the Explanation to article 248.]”.]
(b) The State List shall be omitted.
_639[(c) In the Concurrent List-
_640[(i) for entry 1, the following entry shall be substituted,
namely:-
“1. Criminal law (excluding offences against laws with respect to any
of the matters specified in List I and excluding the use of naval,
military or air forces or any other armed forces of the Union in aid
of the civil power) in so far as such criminal law relates to offences
against laws with respect to any of the matters specified in the
List.”];
_641[_642[(ia) for entry 2, the following entry shall be substituted,
namely:-
“2. Criminal procedure (including prevention of offences and
constitution and organisation of criminal courts, except the Supreme
Court and the High Court) in so far as it relates to,-
(i) offences against laws with respect to any matters being matters
with respect to which Parliament has power to make laws; and
(ii) administration of oaths and taking of affidavits by diplomatic
and
consular officers in any foreign country.”;
(ib) for entry 12, the following entry shall be substituted, namely:-
“12. Evidence and oaths in so far as they relate to,-
(i) administration of oaths and taking of affidavits by diplomatic and
consular officers in any foreign country; and
(ii) any other matters being matters with respect to which Parliament
has power to make laws.”];
(ic) for entry 13, the entry “13. Civil procedure in so far as it
relates to administration of oaths and taking of affidavits by
diplomatic and consular officers in any foreign country.” shall be
substituted;]
_643* * * * *
_644[_645[(ii)] for entry 30, the entry “30. Vital statistics in so
far as they relate to births and deaths including registration of
births and deaths.” shall be substituted;]
_646* * * * *
_647[(iii) entry 3, entries 5 to 10 (both inclusive), entries 14, 15,
17, 20, 21, 27, 28, 29, 31, 32, 37, 38, 41 and 44 shall be omitted;
(iiia) for entry 42, the entry “42. Acquisition and requisitioning of
property, so far as regards acquisition of any property covered by
entry 67 of List I or entry 40 of List III or of any human work of art
which has artistic or aesthetic value.” shall be substituted; and]
_648(iv) in entry 45, for the words and figures “List II or List III”,
the words “this List” shall be substituted.]
(23) EIGHTH SCHEDULE.
_649[(24) NINTH SCHEDULE.
_650[(a)] After entry 64, the following entries shall be added,
namely:-
_651[64A.] The Jammu and Kashmir State Kuth Act (No. I of Svt.
1978).
_651[64B.] The Jammu and Kashmir Tenancy Act (No. II of Svt. 1980).
_651[64C.] The Jammu and Kashmir Alienation of Land Act (No. V of
Svt. 1995).
_652* * * * *
_653[64D.] The Jammu and Kashmir Big Landed Estates Abolition Act (No.
XVII of Svt. 2007).
_653[64E.] Order No. 6-H of 1951, dated the 10th March, 1951,
regarding Resumption of Jagirs and other assignments of land revenue,
etc.
_654[64F. The Jammu and Kashmir Restitution of Mortgaged Properties
Act, 1976 (Act XIV of 1976).
64G. The Jammu and Kashmir Debtors’ Relief Act, 1976 (Act XV of
1976).
_655[(b) Entries 87 to 124, inserted by the Constitution (Thirty-ninth
Amendment) Act, 1975, shall be renumbered as entries 65 to 102
respectively.]
_656[(c) Entries 125 to 188 shall be renumbered as entries 103
to 166 respectively.]
_657[(25) TENTH SCHEDULE.
(a) for the brackets, words and figures “[Articles 102(2) and
191(2)]”, the brackets, word and figures “[Article 102(2)]” shall be
substituted;
(b) in clause (a) of paragraph 1, the words “or the Legislative
Assembly or, as the case may be, either House of the Legislature of a
State” shall be omitted;
(c) in paragraph 2,-
(i) in sub-paragraph (1), in sub-clause (ii) of clause (b) of the
Explanation, the words and figures “or, as the case may be, article
188” shall be omitted;
(ii) in sub-paragraph (3), the words and figures “or, as the case may
be, article 188” shall be omitted;
(iii) in sub-paragraph (4), the reference to the commencement of the
Constitution (Fifty-second Amendment) Act, 1985 shall be construed as
a reference to the commencement of the Constitution (Application to
Jammu and Kashmir) Amendment Order, 1989;
(d) in paragraph 5, the words “or the Chairman or the Deputy Chairman
of the Legislative Council of a State or the Speaker or the Deputy
Speaker of the Legislative Assembly of a State” shall be omitted;
(e) in sub-paragraph (2) of paragraph 6, the words and figures “or, as
the case may be, proceedings in the Legislature of a State within the
meaning of article 212” shall be omitted;
(f) in sub-paragraph (3) of paragraph 8, the words and figures “or, as
the case may be, article 194,” shall be omitted.]