[Answered] What are various special provisions for Jammu and Kashmir in Indian constitution? Discuss Article 35a of Indian constitution in this context.

The Temporary, Transitional and Special provisions are provided in part XXI of our constitution’ Article 370 deals with the State of Jammu & Kashmir which forms a part of the ‘territory of India’ as defined in Article 1 of the Constitution, being the fifteenth State included in the First Schedule of the Constitution, as it stands amended.

Special status wrt Jammu and Kashmir:

1. No law passed by the Parliament regarding the state of Jammu and Kashmir can be applied to the state without the Order of President of India in concurrence of the State government.
2. Preamble and parts I, II, and III of the Constitution of India were made applicable to Jammu and Kashmir with certain modifications. Part V of the Constitution was made applicable to the State in almost it’s entirely.
3. State of Jammu and Kashmir was given a separate Constituent Assembly. It consisted of the representatives of people of the state. The aim of the Constituent Assembly was to write the constitution of the state and demarcate the jurisdiction of Union of India over the state of Jammu and Kashmir. The provisions of the Constituent Assembly were; applied as interim arrangements.
4. Parliament of India would be competent to make laws relating to three areas – Defence, Foreign Affairs, Communication, i.e., issues agreed upon in the Instrument of Accession. All other issues were to be administered according to the Constitution of Jammu and Kashmir.
5. J&K have its own Constitution framed by a special Constituent Assembly set up by the State.
6. Parliament cannot make any law without the consent of the State Legislature relating to:
   • Alteration of name and territories of the State.
   • International treaty/agreement affecting the disposition of any part of the territory of the State.
   • The residuary power in respect of J&K rests with the State Government and not with the Union Government.
   • The Fifth Schedule pertaining to the administration and control of Scheduled Areas and Scheduled Tribes and the Sixth Schedule pertaining to the administration of Tribal Areas are not applicable to the State of J&K.
7. Certain special rights have been granted to the permanent residents of the State of J&K with regard to employment under the State; acquisition of immovable property in the State; settlement of the State etc.
8. No proclamation of emergency made by the President under Article 352 on the ground of armed rebellion shall have effect on the State of J&K without the State Government’s concurrence.
9. The Union has no power to suspend the Constitution of the State on the ground of failure to comply with the direction given by the Union. In the event of the breakdown of the Constitutional machinery in the State, Governor’s Rule is to be imposed.
10. The provisions of Part IV relating to the Directive Principle of State Policy do not apply to J&K.
11. No amendment of the Constitution of India can extend to J&K unless it is so extended by the order of the President under Article 370 (1).
12. The High Court of J&K enjoys very limited powers. It cannot declare any law unconstitutional or issue writs, except for the enforcement of the Fundamental Right.

Analysis of Article 35 A:

1. Article 35A provided Jammu and Kashmir Legislature a complete freedom to decide about the permanent residents of the State.
2. It gives the permanent residents special rights and privileges regarding the acquisition of property in the state, in public sector jobs, scholarships and other public aid and welfare.
3. It forbids Indian citizens from settling in the state, acquiring immovable properties, seeking employment in the state.
4. If a native woman marries a man not holding a permanent resident certificate of Jammu & Kashmir, then she would lose her property right and their children also become ineligible to claim the property of their mother.
5. Article 35A also adversely affects the economic development of the state.

Restricting citizens from other States from getting employment or buying property within J&K is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.

There is also discrimination on the basis of gender. The matter is sensitive and requires participation of various stakeholders and requires a larger debate.