State Subjects to Permanent Residents of J&K: Rights under Article 35A | JKPSC KAS (Jammu and Kashmir): Preparation Course PDF Download

 Page 1


M.A. Political Science, Semester IV, Course No. 401, Dynamics of Jammu and Kashmir Politics
UNIT - I: Evolution : Historical and Constitutional Basis
1.4. STATE SUBJECTS TO PERMANENT RESIDENTS OF
JAMMU &KASHMIR :  RIGHTS UNDER ARTICLE 35A.
-Mamta Sharma
STRUCTURE
1.4.0   Objectives
1.4.1   Introduction
1.4.2   Historical Background
INTRODUCTION
Fundamental rights constitute one of the most important features of the
Constitution of India and, as such, they have the same importance in the
Constitution of Jammu and Kashmir state also.  In Indian Constitution fundamental
rights have been placed under a separate part, but the same have been added to
the part dealing with permanent residents in the state Constitution. The Indian
Constitution guarantees, basic rights and liberties to its citizens. In a democratic
polity the government is always limited by institutional safeguards.  The
Constitution ensures free exercise of these guaranteed rights against any kind of
encroachment on the part of government of the official tyranny. The fundamental
Page 2


M.A. Political Science, Semester IV, Course No. 401, Dynamics of Jammu and Kashmir Politics
UNIT - I: Evolution : Historical and Constitutional Basis
1.4. STATE SUBJECTS TO PERMANENT RESIDENTS OF
JAMMU &KASHMIR :  RIGHTS UNDER ARTICLE 35A.
-Mamta Sharma
STRUCTURE
1.4.0   Objectives
1.4.1   Introduction
1.4.2   Historical Background
INTRODUCTION
Fundamental rights constitute one of the most important features of the
Constitution of India and, as such, they have the same importance in the
Constitution of Jammu and Kashmir state also.  In Indian Constitution fundamental
rights have been placed under a separate part, but the same have been added to
the part dealing with permanent residents in the state Constitution. The Indian
Constitution guarantees, basic rights and liberties to its citizens. In a democratic
polity the government is always limited by institutional safeguards.  The
Constitution ensures free exercise of these guaranteed rights against any kind of
encroachment on the part of government of the official tyranny. The fundamental
rights guaranteed to the citizens of India are not however absolute. They are
placed under certain restrictions and limitations in the interests of the security of
state, maintenance of public order, friendly relations with foreign nations, stability
of the social order etc.
     HISTORICAL BACKGROUND
In the late twenties, the people of Jammu and Kashmir state had agitated
for the protection of their rights against the superior competing interests of the
non residents of the state. It was in response to this popular agitation that the
Mahraja’s government promulgated a Notification in 1927 and provided a strict
definition of the term “State Subjects”. This Notification read with the State
Notification of 1932 provided to some extend the law of the citizenship of the
state. In 1950, the Constitution of India came into force. Article 370 of the same
covered the case of Jammu and Kashmir state. By virtue of the powers conferred
by this Article, the President of India, in concurrence of the government of Jammu
and Kashmir, issued an order,  The Constitution ( Application to Jammu and
Kashmir) Order, 1950. This Order enumerated the provisions of the Constitution
of India which were to apply to the state in addition to the provisions of Article
370 and Article 1.
PERMANENT RESIDENTS FOR JAMMU  AND KASHMIR
STATE
The constitution of Jammu and Kashmir has provision of permanent
residents. The citizenship laws of India did not apply to the state of Jammu and
Kashmir. In 1956 the Constituent Assembly of J&K satisfied to the states
accession to India and settled the Controversy regarding the future affiliations of
the state with Indian Union. Negotitations  were held between the representatives
of India and J&K and it was agreed  that the permanent residents of the state
could have the common  Indian citizenship. The President of India in Consultation
with the state government issued the constitution ( Application to Jammu and
Kashmir) Order 1954. This order lays down the essentials of the permanent
residents of Jammu and Kashmir .
Page 3


M.A. Political Science, Semester IV, Course No. 401, Dynamics of Jammu and Kashmir Politics
UNIT - I: Evolution : Historical and Constitutional Basis
1.4. STATE SUBJECTS TO PERMANENT RESIDENTS OF
JAMMU &KASHMIR :  RIGHTS UNDER ARTICLE 35A.
-Mamta Sharma
STRUCTURE
1.4.0   Objectives
1.4.1   Introduction
1.4.2   Historical Background
INTRODUCTION
Fundamental rights constitute one of the most important features of the
Constitution of India and, as such, they have the same importance in the
Constitution of Jammu and Kashmir state also.  In Indian Constitution fundamental
rights have been placed under a separate part, but the same have been added to
the part dealing with permanent residents in the state Constitution. The Indian
Constitution guarantees, basic rights and liberties to its citizens. In a democratic
polity the government is always limited by institutional safeguards.  The
Constitution ensures free exercise of these guaranteed rights against any kind of
encroachment on the part of government of the official tyranny. The fundamental
rights guaranteed to the citizens of India are not however absolute. They are
placed under certain restrictions and limitations in the interests of the security of
state, maintenance of public order, friendly relations with foreign nations, stability
of the social order etc.
     HISTORICAL BACKGROUND
In the late twenties, the people of Jammu and Kashmir state had agitated
for the protection of their rights against the superior competing interests of the
non residents of the state. It was in response to this popular agitation that the
Mahraja’s government promulgated a Notification in 1927 and provided a strict
definition of the term “State Subjects”. This Notification read with the State
Notification of 1932 provided to some extend the law of the citizenship of the
state. In 1950, the Constitution of India came into force. Article 370 of the same
covered the case of Jammu and Kashmir state. By virtue of the powers conferred
by this Article, the President of India, in concurrence of the government of Jammu
and Kashmir, issued an order,  The Constitution ( Application to Jammu and
Kashmir) Order, 1950. This Order enumerated the provisions of the Constitution
of India which were to apply to the state in addition to the provisions of Article
370 and Article 1.
PERMANENT RESIDENTS FOR JAMMU  AND KASHMIR
STATE
The constitution of Jammu and Kashmir has provision of permanent
residents. The citizenship laws of India did not apply to the state of Jammu and
Kashmir. In 1956 the Constituent Assembly of J&K satisfied to the states
accession to India and settled the Controversy regarding the future affiliations of
the state with Indian Union. Negotitations  were held between the representatives
of India and J&K and it was agreed  that the permanent residents of the state
could have the common  Indian citizenship. The President of India in Consultation
with the state government issued the constitution ( Application to Jammu and
Kashmir) Order 1954. This order lays down the essentials of the permanent
residents of Jammu and Kashmir .
The constitution of Jammu and Kashmir does not include a separate
chapter on the fundamental rights. But it does make application of Part III of the
Indian Constitution of permanent residents of Jammu and Kashmir enjoy all the
rights which are mentioned in Part III of the Indian Constitution. Section 10 of
the constitution of J&K  provides that permanent residents of the state will have
all the rights guaranteed to them under the constitution of India as applicable in
the state under the constitution Order, 1954, vide section 2 (4).
Part III of Jammu and Kashmir Constitution provides the detailed
provision for rights of Permanent Residents of Jammu and Kashmir state. Section
6 to Section 10 of the J&K  Constitution deals with the permanent residents of
the state.
 Under Section 6 of J&K Constitution- {1) Every person who is, or is
deemed to be, a citizen of India under the provisions of the Constitution of India
shall be a permanent resident of the State, if on the fourteenth day of May, 1954-
(a) He was a State Subject of Class I or of Class II; or
(b) Having lawfully acquired immovable property in the State, he has been
ordinarily resident in the State for not less than ten years prior to that date.
(2) Any person who, before the fourteenth day of May, 1954, was a State
Subject of Class I or of Class II and who, having migrated after the first day of
March, 1947, to the territory now included in Pakistan, returns to the State
under a permit for resettlement in the State or for permanent return issued by or
under the authority of any law made by the State Legislature shall on such return
be a permanent resident of the State.
(3) In this section, the expression “State Subject of Class I or of Class II”
shall have the same meaning as in State Notification No. 1-L/84 dated the
twentieth April, 1927, read with State Notification No. 13/L dated the twenty
seventh June, 1932.
Section 7 provides provision for the  Construction of references to State
Page 4


M.A. Political Science, Semester IV, Course No. 401, Dynamics of Jammu and Kashmir Politics
UNIT - I: Evolution : Historical and Constitutional Basis
1.4. STATE SUBJECTS TO PERMANENT RESIDENTS OF
JAMMU &KASHMIR :  RIGHTS UNDER ARTICLE 35A.
-Mamta Sharma
STRUCTURE
1.4.0   Objectives
1.4.1   Introduction
1.4.2   Historical Background
INTRODUCTION
Fundamental rights constitute one of the most important features of the
Constitution of India and, as such, they have the same importance in the
Constitution of Jammu and Kashmir state also.  In Indian Constitution fundamental
rights have been placed under a separate part, but the same have been added to
the part dealing with permanent residents in the state Constitution. The Indian
Constitution guarantees, basic rights and liberties to its citizens. In a democratic
polity the government is always limited by institutional safeguards.  The
Constitution ensures free exercise of these guaranteed rights against any kind of
encroachment on the part of government of the official tyranny. The fundamental
rights guaranteed to the citizens of India are not however absolute. They are
placed under certain restrictions and limitations in the interests of the security of
state, maintenance of public order, friendly relations with foreign nations, stability
of the social order etc.
     HISTORICAL BACKGROUND
In the late twenties, the people of Jammu and Kashmir state had agitated
for the protection of their rights against the superior competing interests of the
non residents of the state. It was in response to this popular agitation that the
Mahraja’s government promulgated a Notification in 1927 and provided a strict
definition of the term “State Subjects”. This Notification read with the State
Notification of 1932 provided to some extend the law of the citizenship of the
state. In 1950, the Constitution of India came into force. Article 370 of the same
covered the case of Jammu and Kashmir state. By virtue of the powers conferred
by this Article, the President of India, in concurrence of the government of Jammu
and Kashmir, issued an order,  The Constitution ( Application to Jammu and
Kashmir) Order, 1950. This Order enumerated the provisions of the Constitution
of India which were to apply to the state in addition to the provisions of Article
370 and Article 1.
PERMANENT RESIDENTS FOR JAMMU  AND KASHMIR
STATE
The constitution of Jammu and Kashmir has provision of permanent
residents. The citizenship laws of India did not apply to the state of Jammu and
Kashmir. In 1956 the Constituent Assembly of J&K satisfied to the states
accession to India and settled the Controversy regarding the future affiliations of
the state with Indian Union. Negotitations  were held between the representatives
of India and J&K and it was agreed  that the permanent residents of the state
could have the common  Indian citizenship. The President of India in Consultation
with the state government issued the constitution ( Application to Jammu and
Kashmir) Order 1954. This order lays down the essentials of the permanent
residents of Jammu and Kashmir .
The constitution of Jammu and Kashmir does not include a separate
chapter on the fundamental rights. But it does make application of Part III of the
Indian Constitution of permanent residents of Jammu and Kashmir enjoy all the
rights which are mentioned in Part III of the Indian Constitution. Section 10 of
the constitution of J&K  provides that permanent residents of the state will have
all the rights guaranteed to them under the constitution of India as applicable in
the state under the constitution Order, 1954, vide section 2 (4).
Part III of Jammu and Kashmir Constitution provides the detailed
provision for rights of Permanent Residents of Jammu and Kashmir state. Section
6 to Section 10 of the J&K  Constitution deals with the permanent residents of
the state.
 Under Section 6 of J&K Constitution- {1) Every person who is, or is
deemed to be, a citizen of India under the provisions of the Constitution of India
shall be a permanent resident of the State, if on the fourteenth day of May, 1954-
(a) He was a State Subject of Class I or of Class II; or
(b) Having lawfully acquired immovable property in the State, he has been
ordinarily resident in the State for not less than ten years prior to that date.
(2) Any person who, before the fourteenth day of May, 1954, was a State
Subject of Class I or of Class II and who, having migrated after the first day of
March, 1947, to the territory now included in Pakistan, returns to the State
under a permit for resettlement in the State or for permanent return issued by or
under the authority of any law made by the State Legislature shall on such return
be a permanent resident of the State.
(3) In this section, the expression “State Subject of Class I or of Class II”
shall have the same meaning as in State Notification No. 1-L/84 dated the
twentieth April, 1927, read with State Notification No. 13/L dated the twenty
seventh June, 1932.
Section 7 provides provision for the  Construction of references to State
Subjects in existing laws:-  Unless the context otherwise requires, all references
in any existing law to hereditary State Subjects or to State Subject of Class I or
of Class II or of Class III shall be construed as references to permanent residents
of the State.
Sections 8 and of the Constitution of Jammu and Kashmir provides for a
very tough procedure to amend this provision.  Sections 8 provides,  Legislature
to define permanent residents:- Nothing in the foregoing provisions of this part
shall derogate from the power of the State Legislature to make any law defining
the classes of persons who are, or shall be, permanent residents of the State. .
Under Section 9 - Special prevision for Bills relating to permanent
residents:-A Bill making provision for any of the following matters, namely-
(a) Defining or altering the definition of the classes of persons who are, or
shall be, permanent residents of the State;
(b) Conferring on permanent residents any special rights or privileges;
(c) Regulating or modifying any special rights or privileges enjoyed by
permanent residents; shall be deemed to be passed by either House of the
Legislature only if it is passed by a majority of not less than two-thirds of the
total membership of that House.
Section 10 of the J&K Constitution declares that: “ The permanent
residents of the state shall have all the rights guaranteed to them under the
Constitution of India”.  The fundamental rights guaranteed to Indian citizens are
dealt with in the Part III of the Constitution of India. These rights were extended
to the state of Jammu and Kashmir in 1954 by the Constitution Application to
Jammu and Kashmir order, 1954 and came into force on the same day. The
fundamental rights had been made, however, applicable to the state with some
exceptions and modifications.
Section 6 of the Constitution identifies the classes of people of the state
who are the permanent residents of the state. The constitution however does not
Page 5


M.A. Political Science, Semester IV, Course No. 401, Dynamics of Jammu and Kashmir Politics
UNIT - I: Evolution : Historical and Constitutional Basis
1.4. STATE SUBJECTS TO PERMANENT RESIDENTS OF
JAMMU &KASHMIR :  RIGHTS UNDER ARTICLE 35A.
-Mamta Sharma
STRUCTURE
1.4.0   Objectives
1.4.1   Introduction
1.4.2   Historical Background
INTRODUCTION
Fundamental rights constitute one of the most important features of the
Constitution of India and, as such, they have the same importance in the
Constitution of Jammu and Kashmir state also.  In Indian Constitution fundamental
rights have been placed under a separate part, but the same have been added to
the part dealing with permanent residents in the state Constitution. The Indian
Constitution guarantees, basic rights and liberties to its citizens. In a democratic
polity the government is always limited by institutional safeguards.  The
Constitution ensures free exercise of these guaranteed rights against any kind of
encroachment on the part of government of the official tyranny. The fundamental
rights guaranteed to the citizens of India are not however absolute. They are
placed under certain restrictions and limitations in the interests of the security of
state, maintenance of public order, friendly relations with foreign nations, stability
of the social order etc.
     HISTORICAL BACKGROUND
In the late twenties, the people of Jammu and Kashmir state had agitated
for the protection of their rights against the superior competing interests of the
non residents of the state. It was in response to this popular agitation that the
Mahraja’s government promulgated a Notification in 1927 and provided a strict
definition of the term “State Subjects”. This Notification read with the State
Notification of 1932 provided to some extend the law of the citizenship of the
state. In 1950, the Constitution of India came into force. Article 370 of the same
covered the case of Jammu and Kashmir state. By virtue of the powers conferred
by this Article, the President of India, in concurrence of the government of Jammu
and Kashmir, issued an order,  The Constitution ( Application to Jammu and
Kashmir) Order, 1950. This Order enumerated the provisions of the Constitution
of India which were to apply to the state in addition to the provisions of Article
370 and Article 1.
PERMANENT RESIDENTS FOR JAMMU  AND KASHMIR
STATE
The constitution of Jammu and Kashmir has provision of permanent
residents. The citizenship laws of India did not apply to the state of Jammu and
Kashmir. In 1956 the Constituent Assembly of J&K satisfied to the states
accession to India and settled the Controversy regarding the future affiliations of
the state with Indian Union. Negotitations  were held between the representatives
of India and J&K and it was agreed  that the permanent residents of the state
could have the common  Indian citizenship. The President of India in Consultation
with the state government issued the constitution ( Application to Jammu and
Kashmir) Order 1954. This order lays down the essentials of the permanent
residents of Jammu and Kashmir .
The constitution of Jammu and Kashmir does not include a separate
chapter on the fundamental rights. But it does make application of Part III of the
Indian Constitution of permanent residents of Jammu and Kashmir enjoy all the
rights which are mentioned in Part III of the Indian Constitution. Section 10 of
the constitution of J&K  provides that permanent residents of the state will have
all the rights guaranteed to them under the constitution of India as applicable in
the state under the constitution Order, 1954, vide section 2 (4).
Part III of Jammu and Kashmir Constitution provides the detailed
provision for rights of Permanent Residents of Jammu and Kashmir state. Section
6 to Section 10 of the J&K  Constitution deals with the permanent residents of
the state.
 Under Section 6 of J&K Constitution- {1) Every person who is, or is
deemed to be, a citizen of India under the provisions of the Constitution of India
shall be a permanent resident of the State, if on the fourteenth day of May, 1954-
(a) He was a State Subject of Class I or of Class II; or
(b) Having lawfully acquired immovable property in the State, he has been
ordinarily resident in the State for not less than ten years prior to that date.
(2) Any person who, before the fourteenth day of May, 1954, was a State
Subject of Class I or of Class II and who, having migrated after the first day of
March, 1947, to the territory now included in Pakistan, returns to the State
under a permit for resettlement in the State or for permanent return issued by or
under the authority of any law made by the State Legislature shall on such return
be a permanent resident of the State.
(3) In this section, the expression “State Subject of Class I or of Class II”
shall have the same meaning as in State Notification No. 1-L/84 dated the
twentieth April, 1927, read with State Notification No. 13/L dated the twenty
seventh June, 1932.
Section 7 provides provision for the  Construction of references to State
Subjects in existing laws:-  Unless the context otherwise requires, all references
in any existing law to hereditary State Subjects or to State Subject of Class I or
of Class II or of Class III shall be construed as references to permanent residents
of the State.
Sections 8 and of the Constitution of Jammu and Kashmir provides for a
very tough procedure to amend this provision.  Sections 8 provides,  Legislature
to define permanent residents:- Nothing in the foregoing provisions of this part
shall derogate from the power of the State Legislature to make any law defining
the classes of persons who are, or shall be, permanent residents of the State. .
Under Section 9 - Special prevision for Bills relating to permanent
residents:-A Bill making provision for any of the following matters, namely-
(a) Defining or altering the definition of the classes of persons who are, or
shall be, permanent residents of the State;
(b) Conferring on permanent residents any special rights or privileges;
(c) Regulating or modifying any special rights or privileges enjoyed by
permanent residents; shall be deemed to be passed by either House of the
Legislature only if it is passed by a majority of not less than two-thirds of the
total membership of that House.
Section 10 of the J&K Constitution declares that: “ The permanent
residents of the state shall have all the rights guaranteed to them under the
Constitution of India”.  The fundamental rights guaranteed to Indian citizens are
dealt with in the Part III of the Constitution of India. These rights were extended
to the state of Jammu and Kashmir in 1954 by the Constitution Application to
Jammu and Kashmir order, 1954 and came into force on the same day. The
fundamental rights had been made, however, applicable to the state with some
exceptions and modifications.
Section 6 of the Constitution identifies the classes of people of the state
who are the permanent residents of the state. The constitution however does not
intend to lay down a permanent or comphrensive law relating to permanent
residentship.  The powers to enact law defining the classes of persons who are,
or shall be, permanent resident of the state is left to the state legislature by section
8 of the state constitution. But any such law which defines or alters the definition
of the classes of persons who are or shall be, permanent residents of the state,
confers on permanent residents any special rights or privileges or regulates or
modifies any special rights or privileges enjoyed by permanent residents has to
be passed by majority of not less than two thirds of the total membership of the
legislature.
  ARTICLE 35A OF THE CONSTITUTION
Article 35A is a unique provision of the Constitution of India. It is a part
of the Constitution, but does not figure in the bare Act. One does not find Article
35A after Article 35 in the Constitution. Article 35 is followed by Article 36.
Article 35 A  was conceived exclusively for the benefit of the State of Jammu
and Kashmir through a Presidential Order issued in 1954. It empowers the Jammu
and Kashmir State Legislature to define the State’s ‘permanent residents’ and
their special rights and privileges. It was specially devised to save the State
subject laws that had already been defined under the Dogra ruler Maharaja Hari
Singh’s regime and notified in 1927 and 1932. However, this Article which came
into force in 1954 without a place in the bare Act of the Constitution was unknown
to the public. It came into limelight only when cases were filed in the apex court
challenging its validity, thereby raising an intense debate.
1.4.4.4 Historical Background of Article 35A
Through the 1927 and 1932 notifications, Maharaja Hari Singh, the ruler
of the princely state of Jammu and Kashmir, imposed a law defining the State
subjects and their rights. The law also regulated migrants to the State. Following
Independence, the State joined the Union of India through an instrument of
accession to India signed by Hari Singh in October 1947.  After Jammu and
Kashmir’s accession to India, Sheikh Abdullah who took over the reins from