There are thus citizens of India who have not been conferred the status of state subjects. The phrase ‘state subjects’ and ‘permanent residents’ are used interchangeably. Millions of people migrated to India in 1947. Those who settled in other parts of India have all the constitutional guarantees available to them. They are entitled to all fundamental rights available under the Constitution of India to the citizens. The unfortunate ones who migrated to the state of Jammu & Kashmir have been conferred citizenship of India. They can vote in national elections. They can hold property anywhere in India. However, they have not been conferred the status of being state subjects under Article 6 of the Jammu & Kashmir Constitution. Being citizens of India, they are discriminated against. They cannot vote or contest elections of the Assembly, Municipality or Panchayats in the state. They cannot get a job in the state. They cannot acquire property in the state. Their children are not entitled to admission to colleges as state subjects. The bright ones amongst them cannot even get scholarship or any other type of aid from the state. Article 35A of the Constitution of India executively inserted pursuant to Article 370 (1) (d) excludes the provision of ‘this part’ of the Constitution. ‘This part’ of the Constitution refers to ‘Part III.’
The effect of this would be that laws inconsistent with fundamental rights would be valid qua these persons. These citizens of India are not entitled to the protection of Article 14 (equality), Article 15 (prohibition of discrimination on basis of religion, caste, race or place of birth), Article 16 (Equality of opportunity in matters of public employment and reservations), the fundamental rights under Article 19 including the right to free speech and the right to life and liberty under Article 21. They are not entitled to the freedom of practice and propagation of religion under Article 25. They are also not entitled to protection of interests available to minorities under Article 29 and 30. The non-State subjects, who are citizens of India, who live in Jammu & Kashmir by virtue of Article 35A, are denied these protections. The pre 2002 position in relation to daughters who marry outside the State that they would lose their right of inheritance is based on the authority to discriminate against citizens of India, between citizens of India and State subjects which Article 35A confers.
Should a provision like Article 35A which exists only because of Article 370 have place in any civilized society? It is oppressive against citizens of India. It is discriminatory and violative of fundamental rights. Article 35A was inserted in 1954. On a bare reading, it violates the basic structure of the Constitution. I wonder if its constitutional validity will be challenged at some point of time.