K. B. Jandial
Straight Talk
Fast moving political developments in the backdrop of hyperbole debate on Article 35A are confusing the people about the things to shape in near future. The mainstream leaders of Kashmir including once arch rivals- NC & PDP, and the Congress burying their hatchet and made a common cause on Article 35A to warn Delhi against possible tinkering of special status. Separatists, Kashmiri traders and civil society too jumped the bandwagon and managed a shut down on the issue. NC-PDP bonhomie was discernible in CM’s I-Day speech that could be a matter of concern for coalition partner BJP which maintains studded silence on their otherwise favorite election topic. Reconciliatory message (embracing every Kashmiri) by PM from the ramparts of Red Fort on I-Day gave another political swing to the entire scenario.
Strong words and threats of Kashmir leaders have brought in a regional divide with Jammu opposing retention of this Article as it craves for greater integration with the country. Omar’s spirited campaign to warn both regions of impending pressure of “outsiders” in the event of scrapping of Article 35A fell on deaf ears. PM’s reported assurance to Mehbooba Mufti to stand by BJP’s commitment in Agenda of Alliance on status quo on J&K special constitutional position, failed to change the sentiments in Jammu with Ladakh following suit.
PM’s assurance notwithstanding Attorney General is still ‘avoiding’ filing of affidavit in SC in a PIL against Article 35A by an NGO; “We the Citizens” pending since July 23, 2014, saying that it is a sensitive matter that needs greater debate. A Muslim woman too has challenged the gender biased law. In another petition by Dr. Charu Wali against the “State Subjects” law, SC hinted of enlarging the Bench to 5-Judge Constitutional Bench to hear both petitions and complete within six weeks hearing likely to start on August 29, 2017.
What is this Article and how it came into being? Article 370 is the mother of all Presidential orders including Article 35A which gives constitutional protection to discriminatory “State Subject” law. The President, exercises constitutional power vested in him by Art 370 cl 1 (d) to extend other provisions of the Constitution ( so far 94 out of 97 entries of Union list stand extended) by Presidential order but with “concurrence of State Govt.” while originally only Articles 1 and 370 were applied to J&K (Art 370 cl1 (C). The impugned order, “The Constitution (Application to Jammu & Kashmir) Order 1954” extended many provisions of the Constitution and entries of schedules including Article 35A to J&K. Not many know that these provisions were drafted with “exceptions and modifications” and adopted by the State Constituent Assembly (which was in existence then) on February 15, 1954. The order of May 14, 1954, inter alia, says, “After article 35, the following new article shall be added, namely:-
“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 or 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.”
The controversy has roots in Maharaja’s notification no. 1-L/84 of 20th April 1927 read with notification no.13/L dated 27th June, 1932, which barred non-“State Subjects” from acquiring land, settling in J&K and seeking State jobs.
Article 35-A is the outcome of Delhi Agreement reached between Prime Minister Jawaharlal Nehru and J& K Prime Minister Sheikh Abdullah in July 1952. Nehru had informed Lok Sabha (On July 24, 1952) and Sheikh Abdullah J&K Constituent Assembly (August 11, 1952) about Delhi Agreement and the issues relating to full citizenship rights and existing State Subject law of Maharaja Hari Singh’s time. It was told that in terms of Article 5 of the Indian Constitution persons who have their domicile in Jammu and Kashmir shall be the citizens of India.
Nehru told Lok Sabha, “…..the present Government of Kashmir is very anxious to preserve that right (Maharaja’s State Subject law) because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places….. I agree that under Article 19, clause (5) of our Constitution, we think it is clearly permissible both in regard to the existing law and any subsequent legislation….safeguards such existing laws”.
Similarly, Sheikh Abdullah told J&K Constituent Assembly, “There are historic reasons which necessitated such constitutional safeguards as for centuries past, the people of the State have been victims of exploitation at the hands of their well- to- do neighbours… in the late twenties, the people of Jammu and Kashmir agitated for the protection of their bona fide rights against the superior competing interests of the non- residents of the State. It was in response to this popular demand that the Govt. of the day promulgated a Notification in 1927 by which a strict definition of the term “State Subject” was provided…… No definition of the special rights and privileges of the residents of the State can afford to remain static. The need may arise at one stage or the other to liberalise such a definition.”
Consequently, J&K Constituent Assembly made special provisions for State Subjects in Sections 6 to 9. As explained by Sheikh Abdullah, ‘State Subject’ term underwent change to ‘Permanent Resident’ and defined in Section 6. It expanded the definition of ‘Permanent Resident’ by including “any Indian citizen having lawfully acquired immovable property in the State and ordinarily residing in the State for not less than ten years prior to May14, 1954. A provision was also made for those state subjects who migrated to POK and return on valid document for resettlement with no prescribed time limit.
While Maharaja Hari Singh’s motivation was to prevent Englishmen, Punjabis and probably others, to take Govt. jobs, acquire land & settle in J&K; Sheikh Abdullah retained these provisions, obviously to protect State’s Muslim majority character. Nehru had no choice but to agree as J&K was the only Muslim majority state in secular India. So, it was more of a political imperative than legal necessity.
RSS sponsored think tank “Jammu & Kashmir Study Centre” considers it “a sinister executive insertion in the Constitution that is blatantly discriminatory in nature which has victimized individuals and groups even within the state by denying them the basic rights”.
But Kashmir’s legal experts feel that the petition ” attempts to undo a constitutionally settled position which is not permissible as Article 370 and Article 35A are basic features of the Constitution and the constitutional arrangement between two states, and are, therefore, untouchable.” They assert that the grounds on which the petition has been filed are “legally and constitutionally misconceived,” and it raises questions which are political in nature. The courts cannot entertain petitions which involve political issues as ‘it betrays the faith of the people in constitutional democracy,” they argue.
There are 3-fold legal issues in Article 35A: the President cannot by- pass Parliament’s amending power by an Order; the President cannot add a new provision under Article 370 and it violates “the basic structure” of the Constitution. Some argue that Article 35A has made chapter III of Indian Constitution relating to fundamental rights, inapplicable to the State by resorting to “exceptions or modifications”.
Legally, Article 35-A is in direct conflict with Articles 14 and 16 of the Constitution and is brazenly discriminatory in nature. Article 14 grants to all citizens ‘right to equality’ or ‘equal protection of laws’ while Article 16 provides a ‘right of equality of opportunity’ in matters of employment under the State. Since J&K’s existing law granting special privileges to its State Subjects to the exclusion of all other Indian citizens was discriminatory law, insertion of Article 35-A was necessary to provide constitutional protection against being declared ultra vires.
But many still holds it a fraud on the Constitution as it lacks mandate of Constitution or Parliament. They argue that the Constitution only empowers the Parliament to amend the Constitution (except the provisions that are basic principles of Constitution as held by SC) in Article 368 which says,” Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.”
Political arguments apart, the core legal issue before SC would be, whether insertion of new article in the Constitution for J&K falls under the definition of “exception or modification” as Article 370 cl (1) (d) mandates? The J&K Constituent Assembly resolution and Presidential order record, “After article 35, the following new article shall be added”. “Addition” is one way of amendment in terms of Article 368 while Article 370 Cl 1(d) empowers President to extend provisions to J&K only with “exception or modification”. And power of amendment is exclusive constituent right of Parliament.
Another argument is that President cannot invoke drastic powers from a “temporary provision” (Article 370) to amend the permanent provisions of the Constitution. The Presidential order violates the basic structure of the constitution -separation of powers between the legislature and the executive, and constitution’s amending power of Parliament. Argument has merit that since Parliament represents the will of people including of J&K the Constitution empowers it to amend constitution as per the scheme prescribes in article 368. The Parliament is supreme and sovereign. Kashmir experts also hold special status including Article 35A as basic structure.
While Permanent Resident law is core of J&K’s “special status” but creates a psychological barrier between the people of Kashmir and rest of India. Intriguingly no enabling law was ever enacted by the State legislature despite being empowered by Sections 8 &9 of J&K Constitution and protected by Article 35A. Section 8 empowers Legislature to make law defining the classes of persons as Permanent Residents of the State while Section 9 provides special provision to define or alter the definition of permanent residents, conferring on them special rights etc. The only law made was the procedural one- The J&K grant of Permanent Resident Certificate (Procedure) Act 1963 and Rules made under it in 1968. Everything is being done SROs.
In the absence of substantive law depriving women of Permanent Resident status on marrying non state subjects , the J&K High Court had held in Dr. Sushila Sahani’s case in 2002 that “the daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident in Jammu and Kashmir.” Last PDP-Congress coalition Govt did make an effort to give legal teeth to this discriminatory practice against women by getting “Jammu and Kashmir Permanent Resident Status (Disqualification) Bill 2004” passed but could not succeed in Legislative Council.
What happens if the SC strikes down Article 35A on the ground that the President has no power under Article 370 cl 1(d) to insert a new article in the Constitution? If it happens, the occasion can be used positively while safeguarding State’s Muslim majority status. One option would be to seek amendment of Constitution by Parliament under Article 368. But before that, Modi Govt must negotiate with Mehbooba and at least give permanent resident status to West Pakistani refugees by amending Section 6 of J&K constitution (Sheikh has kept some leverage) and also remove gender bias in inheritance by children of woman marrying non-state subject. It would be an occasion to dispense justice to at least two categories of residents adversely affected by the existing discriminatory law.
Notwithstanding political upheaval, Apex Court will have the last word on the constitutional validity of Art 35A in the backdrop of extraordinary powers of the President under Article 370. The country eagerly awaits judgment.
(feedback: kbjandial@gmail.com)
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