Article 35 A of the Indian Constitution: Amendment with context to Property ownership of J&K Citizens

There is a unique provision in the Indian Constitution i.e. Art 35A. It is a provision which is there in the bare act but not there !! The reason being Art 35A appears in the Appendix I of the Indian Constitution. The provision was especially and specifically made for the benefit of the citizens of Jammu and Kashmir through a presidential order  issued in 1954. The Article defines the states ‘Permanent residents’ and their rights and privileges. This article came into much focus when the cases related to challenging its validity started filing in Apex Court. 

Jammu & Kashmir got its own Constitution which was framed in 1956. The constitution defines the ‘Permanent Residents’ as All persons who are born or settled in the state prior to 1911 or after having lawfully acquired immovable property and became residents of the state ten years thereafter. So, the law of permanent residency does not permit the non-residents to acquire immovable property, government jobs, scholarships or other aids etc. However, it was contested in the court that the law is discriminatory in nature as against the women of the state as it creates discrimination against the married women who have choosen to marry a non-citizen of the state i.e.  they are disqualified from the state subjects rights. But the change in regime was noticed after the landmark judgment from the High Court of Jammu and Kashmir in October 2002, where it was held that the women if married to non-resident of  Jammu and Kashmir will not lose their right.

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."

Recent Development:

In a historic move, the special status of Jammu and Kashmir was withdrawn by the government of India on 5th August 2019 enjoyed by the state under Article 370. The decision came on the basis that it will pay the light for uniting the whole India. Separate bill was passed to bifurcate the state into two union territories. On October 27, 2020, the Ministry of Home Affairs (MHA) notified amendments to the existing land law of Jammu, Kashmir and Ladakh regions.

With the notification, the changes were made into 26 state laws on property which will empower the non-citizens to purchase property in the state with the amendment in the laws. The order, called ‘Union Territory of Jammu and Kashmir Re-organisation (Adaptation of Central Laws) Third Order, 2020’which was made effective from the immediate effect. The amendment now allows transferring of agricultural land to non- agricultural purposes i.e. setting up of educational and healthcare institutions but the non-agriculturist cannot purchase the agricultural property.

In August 2020, the Real Estate Regulation and Development rule was notified by Jammu and Kashmir and by October 2020, the Union Territory of Ladakh started following it. Together the development and changes in the state laws regulated property buying and selling in the days to come. The resultant effect will be upon the real estate sector in the state, whereby now  an area of contention for decades will keep any parties(non-kashmiris) interested in investing there in wait-and-watch mode. It is much more dependent upon the political situation in the area which will clear the ambiguities upon the abolition of the Article 35A of the Indian Constitution. 

Expert Opinion:

The expert say that since the area is vulnerable to the terrorist activity and a constant tussle between India and Pakistan, the real estate development in the area has been really slow and limited.  Until the recent amendment, the non-residents were not allowed to purchase the property and hence the investors of the market never responded and gave a positive outlook to the purchasing of the property in the state. They further contend that even though the abolishment of the article from the constitution will not bring much change in the scenario as it will always remain a politically contested place and the investment in property will always remain in abeyance until there is much clarity and certainty in the circumstances. Due to militancy in the area, the locals also do not favour the purchase of property in the area. For now, only those people who can take risk and see the potential in the place, can purchase the property. 

References:

1. https://www.business-standard.com/about/what-is-article-35a

2. https://economictimes.indiatimes.com/news/politics-and-nation/what-is-article-35a-and-why-is-everyone-in-india-talking-about-it-now/articleshow/70507788.cms

3. https://www.bbc.com/news/world-asia-india-40897522

4. http://parliamentlibraryindia.nic.in/writereaddata/Library/Reference%20Notes/Article%2035A%20of%20the%20Constitution-%20An%20overview.pdf