Article 370 vs Article 35A – Comparison

Q: Did the Supreme Court strike down Article 35A?

No. The 11 December 2023 judgment in In Re: Article 370 of the Constitution made no separate ruling on the validity of Article 35A. During the hearing on 28 August 2023, Chief Justice D.Y. Chandrachud remarked that by enacting Article 35A 'you virtually took away fundamental rights', but that was an oral observation, not a holding.

Q: What was the Charu Wali Khanna petition about Article 35A?

Dr Charu Wali Khanna's petition, tagged with We the Citizens v. Union of India (WP (C) 722/2014), argued that Article 35A read with Section 6 of the J&K Constitution discriminated against women, because a woman who married a non-permanent resident could lose her rights while a man in the same position did not.

Last updated: October 2026

This structured comparison distinguishes constitutional gateway functions (Article 370) from the derivative residency rights insertion (Article 35A) introduced via Presidential Order, clarifying doctrinal and operational differences.

1. High-Level Summary Table

In short: Article 370 was a temporary provision in Part XXI of the Constitution that governed how the Constitution applied to Jammu and Kashmir and let the President apply its provisions with exceptions and modifications. Article 35A was not part of the original Constitution: President Rajendra Prasad inserted it on 14 May 1954 through the Constitution (Application to Jammu and Kashmir) Order, 1954 (C.O. 48), issued under Article 370(1). It protected State laws defining “permanent residents” and giving them special rights in State employment, property, settlement and scholarships. Both stopped applying in August 2019 (C.O. 272 and C.O. 273); the Supreme Court upheld the 2019 process on 11 December 2023 but made no separate ruling on Article 35A.

Difference between Article 370 and Article 35A
Dimension	Article 370	Article 35A
What it was	“Temporary provisions with respect to the State of Jammu and Kashmir”	“Saving of laws with respect to permanent residents and their rights”
Where it sat	Part XXI (“Temporary, Transitional and Special Provisions”) of the Constitution’s main text	Added after Article 35 (Part III) for J&K only; its text appeared in C.O. 48, reproduced in Appendix I of the Constitution
Origin Vehicle	Part of the Constitution as adopted (in force from 26 January 1950)	Presidential Order C.O. 48 of 14 May 1954, issued under Article 370(1) with the State Government’s concurrence, following the 1952 Delhi Agreement; not enacted by Parliament under Article 368
Function Type	Procedural gateway: limited Parliament’s powers for J&K and let the President apply other provisions by order (Article 370(1)(d)) or declare the Article inoperative (Article 370(3))	Substantive protection for State laws on (i) employment under the State Government, (ii) acquisition of immovable property, (iii) settlement in the State and (iv) scholarships and other State aid
Effect on Fundamental Rights	Applied Part III to J&K with exceptions and modifications made through Presidential Orders	Such laws could not be held void for being inconsistent with rights conferred on other citizens of India by Part III
Residency Domain	Framework conduit (indirect) – did not itself define residency	Definition supplied by Section 6 of the J&K Constitution (State Subjects of Class I/II on 14 May 1954, or 10 years’ residence plus lawfully acquired property)
Amendment vs Adaptation Debate	Used adaptation + incremental extension to integrate Union provisions	Critiqued for insertion route (Order vs Article 368 amendment)
Post–2019 Status	C.O. 273 (6 August 2019): all clauses cease to be operative except a substituted clause applying the whole Constitution “without any modifications or exceptions”	Ceased to apply: C.O. 272 (5 August 2019) superseded C.O. 48, the Order that had inserted it; replaced by the 2020 domicile regime
Supreme Court	11 December 2023 (2023 INSC 1058): abrogation upheld and Article 370 held temporary; C.O. 272’s Article 367 route held invalid, but its application of the whole Constitution under Article 370(1)(d) upheld	No separate ruling on validity; the challenge (WP (C) 722/2014) was listed as pending by Supreme Court Observer as of December 2021
Litigation Focus	Process legality, temporality, adaptation legitimacy	Equality & procedural validity (insertion method); gender discrimination under Section 6
Comparative Lens	Procedural asymmetry case study	Substantive differential rights construct

Sources: C.O. 48 text (Appendix I); Article 370 text; C.O. 273 (SCC Online); 2023 judgment text; SCO: Constitutionality of Article 35A.

2. Origins & Instrument Pathway

Article 370 originated within transitional provisions enabling granular integration; Article 35A's pathway leveraged that gateway—embedding a residency rights carve-out through executive constitutional application rather than formal amendment. Put simply, Article 370 was the channel, and Article 35A was one specific rule that came through that channel.

How Article 35A came about: dated chain

20 April 1927 and 27 June 1932: Maharaja Hari Singh’s notifications (No. I-L/84 and No. 13/L) defined “State Subjects” in classes. The Supreme Court’s 2023 judgment (CJI’s opinion, para 101) describes the 1927 classification as the later basis of the “Permanent Residents” definition under Article 35A (judgment text; Kashmir Life).
1952 – Delhi Agreement: agreed between Prime Minister Jawaharlal Nehru and Sheikh Abdullah’s State Government. Indian citizenship was to extend to the State’s residents, while the State would legislate on the rights and privileges of its “permanent residents” (LiveLaw).
14 May 1954 – C.O. 48: President Rajendra Prasad issued the Constitution (Application to Jammu and Kashmir) Order, 1954 under Article 370(1), with the State Government’s concurrence. It superseded the 1950 Order. Its clause (j) added Article 35A after Article 35, and the Order also added a clause (4) to Article 367 on how the Constitution was to be read as applied to the State (C.O. 48 text; SCO timeline).
26 January 1957 – Section 6 of the J&K Constitution: the State Constitution came into force. Section 6(1) made every citizen of India a permanent resident if, on 14 May 1954, he was a State Subject of Class I or Class II, or had lawfully acquired immovable property and had been ordinarily resident in the State for at least ten years before that date. Section 6(2) covered certain former State Subjects who had left for territory now in Pakistan after 1 March 1947 and returned under a resettlement permit (Constitution of J&K, 1957).

3. Mechanistic Operation

Article 370: Sequenced extension: Presidential Orders adapting/adding provisions, narrowing differential space incrementally.
Article 35A: Provided legislative competence shield for residency definitions + associated socio-economic benefits. In plain terms, laws on permanent residents could not be struck down for conflicting with the fundamental rights of other Indian citizens.

4. Rights & Residency Impact

Article 35A concretely structured access boundaries in four areas named in its text: employment under the State Government, acquisition of immovable property, settlement in the State, and scholarships and other forms of State aid. Article 370's gateway design facilitated progressive convergence without immediate rights harmonisation, deferring collision until late-stage integration.

5. Litigation & Doctrinal Debate

Article 370 debates emphasised temporality, federal design, and adaptation scope.
Article 35A challenges foregrounded equality jurisprudence and insertion procedure legitimacy.
Puranlal Lakhanpal v. President of India (1961): a five-judge bench read the President’s power to make “modifications” under Article 370(1) broadly. Commentators note that it did not decide whether a wholly new Article could be added by Presidential Order (India TV).
We the Citizens v. Union of India, WP (C) 722/2014: the petitioners argued that Article 35A was introduced by a Presidential Order rather than a constitutional amendment under Article 368, and that Article 6 of the J&K Constitution violated Article 14 (Supreme Court Observer).
Charu Wali Khanna and Seema Razdan Bhargava petitions: tagged with WP (C) 722/2014, these argued that the residency rules discriminated against women, since a woman who married a non-permanent resident could lose her status while a man did not. The State relied on the J&K High Court’s 2002 ruling in State of J&K v. Dr Sushila Sawhney, which held that such women keep their status; the rights of their spouses and children were left unresolved (Supreme Court Observer). See also the gender dimension of Article 35A.
Status: Supreme Court Observer listed the Article 35A challenge as pending (last updated 17 December 2021), noting it would become infructuous if the abrogation of Article 370 was upheld. Its formal disposal after the December 2023 verdict has not been verified here.

6. Post–2019 Legal Landscape

Article 35A no longer applies, and Article 370 survives only in a form that applies the whole Constitution. C.O. 273 of 6 August 2019 declared that all clauses of Article 370 shall cease to be operative except a substituted clause applying “all provisions of this Constitution, as amended from time to time, without any modifications or exceptions” to the State (SCC Online). On 11 December 2023, the Supreme Court Constitution Bench unanimously upheld the abrogation, holding that Article 370 was temporary and that the President could declare it inoperative under Article 370(3). It held that paragraph 2 of C.O. 272 (using Article 367 to read “Constituent Assembly” as “Legislative Assembly”) was impermissible, but upheld C.O. 272’s application of the whole Constitution under Article 370(1)(d) and upheld C.O. 273 (LiveLaw). Residency and property rules have since been rewritten: a Union Territory domicile requirement now governs government posts, and agricultural land remains restricted to agriculturists (see section 8).

What the Supreme Court said about Article 35A

During the hearing (oral remark, 28 August 2023): on the 11th day of hearings, responding to Solicitor General Tushar Mehta’s submissions, Chief Justice D.Y. Chandrachud remarked that by enacting Article 35A “you virtually took away fundamental rights”, referring to equality and the freedom to practise a profession anywhere in India. This was an observation in court, not a finding (The Week).
In the judgment (11 December 2023): Article 35A appears in the CJI’s historical account (para 101 on the 1927 State Subject notification; para 435 stating that “CO 48 amended Article 35 and introduced Article 35A as a new Article”) and in summaries of the parties’ submissions. The Court made no separate ruling on the validity of Article 35A (judgment text).
How Article 35A ended: C.O. 272 of 5 August 2019 superseded the 1954 Order (C.O. 48) that had inserted Article 35A and applied the whole Constitution to Jammu and Kashmir, so Article 35A ceased to apply. Clause 1(2) of C.O. 272 states that it “shall thereupon supersede” the 1954 Order “as amended from time to time” (full text of C.O. 272, Business Today).

7. Analytical Distillation

Article 370 functioned as a time-distributed constitutional import mechanism; Article 35A was a targeted rights differential embedded through that mechanism. Distinguishing procedural gateway from substantive carve‑out clarifies why doctrinal defenses diverged.

8. Post-35A Domicile Regime (2020 → 2026)

With Article 35A inoperative, the “permanent resident” classification was replaced by a new domicile framework, redefining who can buy land, apply for government posts under the Union Territory and access reserved opportunities in J&K UT.

Domicile Eligibility (J&K Reorganisation (Adaptation of State Laws) Order, 2020)

The Order of 31 March 2020 inserted Section 3A into the J&K Civil Services (Decentralization and Recruitment) Act, 2010. A domicile is a person who (LiveLaw):

Residence: has resided in J&K UT for 15 years; or
Education: has studied for 7 years and appeared in the Class 10 or 12 examination in an educational institution in J&K; or
Registered Migrants & Categories: is registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants); or is a child of central government officials, All India Services officers or officials of central PSUs, autonomous bodies, public sector banks, statutory bodies, central universities or recognised central research institutes who have served in J&K for a total of ten years.

Which jobs: the 31 March 2020 Order reserved only posts up to pay Level 4 for domiciles. The Jammu and Kashmir Reorganisation (Adaptation of State Laws) Second Order, 2020 (S.O. 1245(E), 3 April 2020) replaced this with “any post”, so domicile is now a basic eligibility condition for all posts under the Union Territory (Gazette notification). Certificates are issued under the J&K Grant of Domicile Certificate (Procedure) Rules, 2020 (Drishti IAS). On 20 July 2021 the rules were amended so that the spouse of a domicile can obtain a certificate, a gender-neutral change relevant to the earlier complaint about women who married outside the State (Kashmir Reader).

Land-Law Changes (Oct 2020 onwards)

12 J&K land laws repealed and 14 amended via Ministry of Home Affairs orders of 26 October 2020; critically, the “permanent resident of the State” phrase was removed from Section 17 of the J&K Development Act without an equivalent “domicile” substitution — effectively opening land purchase to any Indian citizen for non-agricultural purposes.
The J&K Alienation of Land Act, 1938 (whose Section 4 barred transfers of agricultural land to anyone who was not a State Subject or permanent resident; Law and Other Things) was repealed.
The J&K Big Landed Estates Abolition Act, 1950 was also repealed. Under the amended land revenue law, agricultural land still cannot be sold to a non-agriculturist except with permission (Scroll).

Political Debate (2025–2026)

Residency period: in October 2025, Outlook reported a rare consensus among J&K parties, including Apni Party’s Altaf Bukhari and the Congress’s G.N. Monga, for raising the 15-year residency requirement to 50 years. Chief Minister Omar Abdullah said J&K’s domicile law should be brought “at par” with Ladakh’s and indicated that the decision rests with the Centre. No Assembly resolution on the point was reported (Outlook).
Ladakh comparator: under the Centre’s June 2025 notification, Ladakh domicile requires 15 years’ continuous residence counted from 31 October 2019, so newcomers can qualify only after 2034 (Scroll).
Certificates issued: on 9 April 2025 Chief Minister Omar Abdullah told the Assembly that 35,12,184 domicile certificates had been issued in the previous two years, 83,742 of them to people who were not originally state subjects (Daily Excelsior).
Land purchase row (October 2026): Apni Party chief Altaf Bukhari questioned the purchase of 15 kanals at Syedpora, Harwan (Srinagar) by a Mumbai-based buyer he described as a non-domicile; the Chief Minister’s adviser Nasir Aslam Wani said the government had no role and that the matter was before a court (ETV Bharat, 4 October 2026).
Litigation: in July 2020 the Supreme Court declined to hear a challenge to the domicile requirement for government jobs and asked the petitioner to approach the J&K High Court, which issued notice on the plea; its current status has not been verified here (Deccan Herald; The Kashmir Walla).

9. Frequently Asked Questions

What is the difference between Article 370 and Article 35A?

Article 370 was a temporary provision in Part XXI of the Constitution that governed how the Constitution applied to Jammu and Kashmir. Article 35A was a narrower provision, added in 1954 through a Presidential Order issued under Article 370(1), that protected State laws defining ‘permanent residents’ and giving them special rights in State employment, immovable property, settlement and scholarships.

Was Article 35A passed by Parliament?

No. Article 35A was inserted by the Constitution (Application to Jammu and Kashmir) Order, 1954 (C.O. 48), a Presidential Order issued under Article 370(1) with the concurrence of the State Government. Petitioners and critics argued that only Parliament could amend the Constitution under Article 368.

When was Article 35A added to the Constitution?

On 14 May 1954, when President Rajendra Prasad issued the Constitution (Application to Jammu and Kashmir) Order, 1954, following the 1952 Delhi Agreement between the Union and the State Government.

Who was a permanent resident of Jammu and Kashmir?

Under Section 6 of the Constitution of Jammu and Kashmir, a citizen of India was a permanent resident if, on 14 May 1954, he was a State Subject of Class I or Class II, or had lawfully acquired immovable property and had been ordinarily resident in the State for at least ten years before that date. Section 6 also covered certain former State Subjects who had left for territory now in Pakistan after 1 March 1947 and returned under a resettlement permit.

Did the Supreme Court strike down Article 35A?

No. The 11 December 2023 judgment in In Re: Article 370 of the Constitution made no separate ruling on the validity of Article 35A. During the hearing on 28 August 2023, Chief Justice D.Y. Chandrachud remarked that by enacting Article 35A ‘you virtually took away fundamental rights’, but that was an oral observation, not a holding.

Is Article 35A still in force?

No. The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272, 5 August 2019) superseded the 1954 Order that had inserted Article 35A and applied the whole Constitution to Jammu and Kashmir, so Article 35A ceased to apply.

What replaced permanent resident certificates in Jammu and Kashmir?

Domicile certificates. Since 2020, domicile is based mainly on 15 years’ residence, or 7 years’ study plus a Class 10 or 12 examination in the Union Territory, with further categories such as registered migrants and children of central officials who served in J&K for a total of ten years. Since 3 April 2020 domicile is required for any post under the Union Territory.

Can people from outside Jammu and Kashmir buy land there now?

Since October 2020, Section 17 of the Jammu and Kashmir Development Act no longer requires the buyer to be a permanent resident, so non-agricultural land can be bought by Indian citizens. Agricultural land still cannot be sold to non-agriculturists except with permission under the amended land revenue law.

What was the Charu Wali Khanna petition about Article 35A?

Dr Charu Wali Khanna’s petition, tagged with We the Citizens v. Union of India (WP (C) 722/2014), argued that Article 35A read with Section 6 of the J&K Constitution discriminated against women, because a woman who married a non-permanent resident could lose her rights while a man in the same position did not.

10. Authoritative Sources & Further Reading

Cross-Reference: Article 35A Explained • Residency Rights • Judgment Summary • Similar Articles (371-371J) • 2026 Current Affairs