Article 370 vs Article 35A – Comparison
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
| Dimension | Article 370 | Article 35A |
|---|---|---|
| Origin Vehicle | Constitution (Part XXI – Temporary & Special Provisions) | Inserted by 1954 Presidential Order (C.O. 48) via Article 370(1)(d) |
| Function Type | Procedural gateway enabling selective constitutional application to J&K | Substantive residency rights & legislative competence allocation |
| Core Mechanism | Presidential Orders with concurrence/recommendation logic | Empowered state legislature to define “permanent residents” + confer linked benefits |
| Residency Domain | Framework conduit (indirect) – did not itself define residency | Direct residency rights conferral / restrictions pathway |
| Amendment vs Adaptation Debate | Used adaptation + incremental extension to integrate Union provisions | Critiqued for insertion route (Order vs Article 368 amendment) |
| Post–2019 Status | Declared inoperative (C.O. 273) | Rendered inoperative (linked enabling framework removed) |
| Litigation Focus | Process legality, temporality, adaptation legitimacy | Equality & procedural validity (insertion method) |
| Comparative Lens | Procedural asymmetry case study | Substantive differential rights construct |
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.
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.
4. Rights & Residency Impact
Article 35A concretely structured access boundaries (property, scholarships, public employment). 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.
6. Post–2019 Legal Landscape
Both provisions are non-operative; residency and property frameworks realigned to standard national constitutional baselines, with administrative instruments managing transition.
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.
Cross-Reference: Article 35A Explained • Residency Rights • Judgment Summary