Article 35A and the Unique Character of the Indian Constitution

Few constitutional provisions have sparked as much political and legal debate as the ones tied to Jammu and Kashmir’s special status. At the heart of this debate sat Article 35A, a provision that raised fundamental questions about citizenship, equality, and federalism within a single country. Alongside this, the Indian Constitution itself stands out among the world’s governing documents for its distinctive blend of features, drawn from many global sources yet shaped into something entirely its own. This topic covers both stories: the journey of Article 35A from its origins to its abrogation, and the five characteristics that make India’s Constitution one of a kind.

What Was Article 35A?

Article 35A was a constitutional provision that gave the Jammu and Kashmir legislature (the elected law-making body of the state) complete authority to decide who qualified as a permanent resident (a person legally recognized as belonging to the state) of J&K. It also empowered the state legislature to grant these permanent residents exclusive rights and privileges in four key areas:

Government jobs — All public sector employment within the state was reserved for permanent residents
Property ownership — Only permanent residents could acquire immovable property in J&K
Scholarships and educational benefits — State-funded scholarships were restricted to permanent residents
Public welfare programmes — Other forms of public aid and welfare were similarly reserved

In effect, Article 35A acted as a legal shield that kept these benefits exclusively for those the state government recognized as its own people, preventing outsiders from claiming them.

How It Entered the Constitution

Article 35A was not part of the original Constitution that came into force on 26 January 1950. It was added four years later, in 1954, through a Presidential Order issued under Article 370(1)(d) of the Constitution. This is significant because it bypassed the standard route for changing the Constitution, which runs through Article 368 (the provision that gives Parliament the exclusive power to amend the Constitution). The article was never presented before Parliament for debate or approval and came into effect immediately. This unusual method of incorporation became one of the central points of controversy in the decades that followed.

Why Article 35A Mattered: Its Significance Before Abrogation

Before it was rendered inoperative in 2019, Article 35A played several important roles in the constitutional relationship between J&K and the Indian Union:

Preserving Kashmiri identity — By restricting key privileges to permanent residents, the article helped protect the demographic character and cultural identity of Kashmiriyat (the unique composite culture of the Kashmir valley). Supporters saw this as essential for keeping the region’s distinct way of life intact.
Reflecting the legislative history of J&K’s constitutional status — Article 35A gave effect to the special arrangement between J&K and India that had evolved since accession. As the Supreme Court’s constitution bench noted in the Delhi government vs the L-G case, understanding the legislative history behind a provision is vital for grasping the true intent of the legislature.
Protecting local developmental opportunities — By reserving property ownership, government employment, and welfare benefits for permanent residents, Article 35A aimed to ensure these resources were not taken over by people from outside the state. This was meant to safeguard economic and social opportunities for local Kashmiris.
Limiting secessionist tendencies — The autonomy that Article 35A helped sustain was rooted in the terms of the Instrument of Accession (the legal document through which the ruler of J&K agreed to join the Indian Union in 1947). Supporters argued that honouring this autonomy provided positive incentives for the state to remain integrated with India, rather than pushing towards separation.

A Deep Constitutional Divide: The Debate Over Article 35A

For decades before the 2019 abrogation, Article 35A attracted intense arguments from both sides. The debate touched on questions of constitutionality, equality, women’s rights, federalism, and national unity.

Arguments Raised Against Article 35A

Bypassing Parliament — Critics pointed out that Article 368(i) gives only Parliament the authority to amend the Constitution. By inserting Article 35A through a Presidential Order rather than a parliamentary amendment, the established constitutional process was entirely sidestepped. The article was never debated or voted on by Parliament and took effect immediately upon the order.
Denial of property rights to Kashmiri women — Under the laws protected by Article 35A, a Kashmiri woman who chose to marry someone from outside the state could be stripped of her permanent resident status. This meant losing the right to own property in J&K. The denial of these rights extended to her children as well, creating a form of gender-based discrimination.
Violation of fundamental rights — Article 35A was alleged to violate Article 14 (the right to equality before law), Article 19 (the right to freedom, including freedom to reside and settle in any part of India), and Article 21 (the right to life and personal liberty). The provision discriminated against non-permanent-residents in government employment and real estate purchases, which critics argued was incompatible with the equality guaranteed by the Constitution.
The “temporary provision” argument — Article 370, under which Article 35A was inserted, was titled a “temporary provision” in the Constitution. Critics argued that the framers never intended Article 370 to serve as a tool for making permanent constitutional changes like Article 35A. By creating what was described as a “class within a class” of Indian citizens, the provision was seen as going against the “very spirit of oneness of India.”
Reducing integration, breeding insecurity — While Article 35A provided autonomy, it also had the effect of reducing opportunities for Kashmiris to integrate with the rest of India. This could, paradoxically, breed a sense of isolation and insecurity among the very people the provision was meant to protect.

Arguments Raised in Favour of Article 35A

Fear of erosion of autonomy — Supporters warned that removing Article 35A would erode J&K’s special autonomy, triggering a deeper trust deficit between the state and the central government.
Concern about demographic change — Without the property and employment restrictions of Article 35A, people from other parts of India could migrate freely to the valley and purchase land. Supporters feared this would fundamentally alter the region’s demographic composition and increase the trust deficit.
Threat to the legality of other Presidential Orders — If Article 35A was struck down on the grounds that it was inserted through a Presidential Order rather than a parliamentary amendment, the same logic could call into question the legality of many other Presidential Orders that had been issued under Article 370 over the decades.
Backed by the J&K Constituent Assembly — Although Article 35A was not passed through the amendment process under Article 368, it was inserted on the recommendation of the J&K Constituent Assembly (the body elected by the people of J&K to draft the state’s own constitution). This gave it a form of democratic endorsement.
Predated the basic structure doctrine — Since Article 35A was incorporated in 1954, and the basic structure doctrine (the principle, established by the Supreme Court in the 1973 Kesavananda Bharati case, that certain fundamental features of the Constitution cannot be amended) came into existence only in 1973, supporters argued the article could not be tested against that standard.
Not unique to J&K — Several other Indian states have comparable domicile-based protections. Parts of the Northeast and Himachal Pradesh have restrictions on property purchase by outsiders. Article 371D, for instance, provides domicile-based reservations in jobs and educational admissions for undivided Andhra Pradesh. Article 35A, supporters argued, was consistent with protections already available to other states.

The Abrogation: What Happened on 5 August 2019

On 5 August 2019, the Government of India effectively abrogated Article 370 through a Presidential Order, which simultaneously rendered Article 35A inoperative. In the same constitutional move, J&K was reorganized from a single state into two Union Territories (territories administered directly by the Union government):

Jammu and Kashmir — a Union Territory with its own elected legislature
Ladakh — a Union Territory without a legislature

The constitutional validity of this abrogation was immediately challenged before the Supreme Court. In its landmark December 2023 verdict (In Re: Article 370), a five-judge bench upheld the abrogation. The Court ruled that Article 370 was indeed a temporary provision and that the President had the constitutional authority to issue the order that made it inoperative.

What the Courts Had Said: Judicial Views on Article 370

The relationship between Article 370, Article 35A, and the constitutional status of J&K had been the subject of significant judicial commentary even before the 2019 abrogation. The courts took differing positions over time:

Article 370 as permanent — The J&K High Court had earlier ruled that Article 370 had assumed a “place of permanence” in the Constitution and was a feature beyond amendment, repeal, or abrogation.
Presidential power under Article 370(1) — The High Court also observed that the President, under Article 370(1), had been given the power to extend any provision of the Indian Constitution to the state of J&K.
Limited sovereignty, not full merger — The High Court further noted that J&K, while acceding to the Dominion of India through the Instrument of Accession, had retained limited sovereignty and had not fully merged with the Indian Union.
Protection of existing laws — The High Court clarified that Article 35A served to protect laws already in force in the state, giving them a constitutional shield.
The Supreme Court’s final word — However, the Supreme Court of India took a fundamentally different position in its December 2023 verdict. It held that Article 370 was always meant to be a temporary provision and that the President’s order abrogating it was constitutionally valid. This settled the legal debate conclusively.

Borrowed From Many, Yet Truly Its Own: The Unique Character of India’s Constitution

India’s Constitution is one of the most extensively researched governing documents in history. Its framers studied constitutions from across the world and borrowed freely, but they never copied blindly. Each borrowed element was modified and adapted to suit India’s unique conditions.

Here is where the key ideas came from:

Structural framework — Drawn primarily from the Government of India Act, 1935 (the last major piece of British legislation governing India before independence)
Philosophical foundations — Influenced by the American and Irish constitutions, particularly the concepts of fundamental rights and directive principles
Political structure — The parliamentary system of government was modelled on the British system
Federal design — The idea of a federation with a strong centre came from Canada
Fundamental duties — Inspired by the Soviet constitution
Ideals of liberty, equality, and fraternity — Drawn from the French constitutional tradition

As Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, put it: nobody holds any patent rights over the fundamental ideas of a constitution. Borrowing from other sources is not plagiarism. The framers of the Indian Constitution borrowed widely, but they suitably modified every element, correcting the mistakes they found in the originals and adapting features to the specific needs and realities of India.

Five Features That Set India’s Constitution Apart

Despite this extensive borrowing, the final result is distinctly Indian. Five features, in particular, give it a character found in no other constitution in the world.

1. A unique blend of rigidity and flexibility

Most constitutions follow either a rigid model (like the United States, where amendments are extremely difficult to pass) or a flexible one (like the United Kingdom, where Parliament can change constitutional principles through ordinary legislation). India chose neither extreme. The Indian Constitution has three different amendment procedures depending on the type of provision being changed: some can be amended by a simple majority in Parliament, others require a special majority (two-thirds of members present and voting, provided this also constitutes a majority of total membership), and a third category requires a special majority plus ratification by at least half the state legislatures. No other country in the world has such a layered, multi-track system for different categories of constitutional change.

2. A careful balance between Parliament and the judiciary

In the United Kingdom, Parliament is supreme: courts cannot strike down laws passed by Parliament. In the United States, the judiciary is supreme, with virtually no limits on the scope of judicial review (the power of courts to examine laws and declare them invalid if they violate the Constitution). India deliberately chose a middle path. Indian courts do possess the power of judicial review, allowing them to strike down unconstitutional legislation. However, the Constitution avoids the expression “due process of law” (a phrase in the American Constitution that gives courts very broad authority to evaluate not just the legality but also the fairness and reasonableness of laws). By steering clear of this expression, the Indian Constitution creates a carefully calibrated system where neither Parliament nor the judiciary holds absolute power over the other.

3. Emergency provisions that can transform the federal structure

India’s Constitution contains emergency provisions (Articles 352, 356, and 360) that allow the Union government to temporarily take over functions that are normally handled by state governments. During a declared emergency, the distribution of powers between the Centre and the states shifts dramatically. The federal structure (a system where governing power is divided between central and state governments) can effectively be converted into a unitary one (where all significant power rests with the central government). What makes this unique is that this transformation happens without any formal amendment to the text of the Constitution. No other country’s constitution enables such a fundamental structural shift through executive action alone.

4. Universal adult suffrage from the very first day

When India became a republic on 26 January 1950, it granted the right to vote to every adult citizen regardless of gender, property, education, caste, or social status. This adoption of universal adult suffrage (the principle that every adult citizen has the right to vote) from day one was a remarkably bold decision for a newly independent nation with massive poverty and very low literacy rates. Even established democracies like the United Kingdom and the United States took centuries to achieve full adult suffrage. Women in the UK gained equal voting rights only in 1928, and racial barriers to voting in the US were not effectively removed until the Voting Rights Act of 1965. India accomplished at its founding what others struggled towards for generations.

5. A constitutionally established three-tier government

The 73rd and 74th Constitutional Amendment Acts, passed in 1992, formally created a three-tier system of governance in India: the Union government at the national level, state governments at the state level, and elected local bodies at the grassroots level. These local bodies take two forms: panchayats (elected rural self-governing institutions at the village, block, and district levels) and municipalities (elected urban local bodies for towns and cities). By embedding local self-governance in the Constitution itself, India turned the vision of decision-making at the level closest to the people from a policy goal into a constitutional guarantee.