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| SC, not Modi, will have last word on Article 35A | | Straight Talk | 
By K. B. Jandial
Intemperate and strong words coupled with threats by almost all Kashmir based mainstream as well as Hurriyat leaders on Article 35A of Constitution of India have brought in a dangerous regional divide with Jammu opposing retention of this article, silence of BJP and assurance of PM Modi to stand by commitment on status quo on J&K special constitutional position notwithstanding. For the first time, two major political rivals- NC& PDP have made common cause with the separatists and civil society at their beck and call against Delhi on “tinkering” of Article 35A as if it is Modi Govt which has to decide it-retention or scrapping. A three-Judge Supreme Court bench complete within six weeks hearing of a pending PIL. Political debate is meaningless as it wouldn’t influence the Bench which would settle it judiciously.
Unknown in the public domain till recently, Article 35-A is neither the part of original Constitution of India nor it is available in most of the text books of the constitution available in libraries and shops. It was added not by constitutional amendment but by Presidential order.
Sixty years after inclusion, its constitutional validity was challenged on July 23, 2014 through a 51-page petition filed by a Delhi based NGO, “We the Citizens” in the Supreme Court. 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”.
Kashmir’s view is 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.” Kashmir’s legal experts 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.
A legal luminary and noted pro-Kashmir lawyer, A G Noorani described the petition as “reeks of emotive politics, factual errors, and far-fetched arguments which are manifestly absurd”. Noorani felt that the Apex Court should not have entertained the petition. How a legal luminary of his standing forgets that every Indian is free to discuss, challenge and seek judicial scrutiny of any matter. Whatever views Noorani airs, the fact remains that the issue is in no way frivolous.
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 lastly, it violates “the basic structure” of the Constitution. Another issue is that it has made chapter III of the Constitution relating to fundamental rights, inapplicable to the State by resorting to “exceptions or modifications”. .
What is this article and how it has come into being? Article 370 is the mother of all Presidential orders including of Article 35A and the President exercising constitutional power vested in him by Art 370 cl 1 (d) has extended almost all provisions of the Constitution( 94 out of 97 entries of Union list) while originally only Articles 1 and 370 were applied to J&( Art 370 cl1 ( C ).
“The Constitution (Application to Jammu & Kashmir) Order 1954 on May 14, 1954 (C.O.48)” extended many provisions of the Constitution and entries of schedules to J&K. The order, 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.”
With roots in Maharaja’s notification no. 1-L/84 of 20th April 1927 read with notification no.13/L dated 27th June, 1932, 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. Consequently on May 14, 1954, the J&K Constituent Assembly sanctified this controversial law. It continues only because Article 35A gives constitutional protection to otherwise brazenly discriminatory provision.
Both Pt Nehru and Sheikh Abdullah Lok Sabha (On July 24, 1952) and J&K Constituent Assembly( August 11, 1952) about the 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 the Jammu and Kashmir State 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 the Constituent Assembly that, “It was further agreed that the State legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State more especially in regard to acquisition of immovable property, appointments to services and like matters. Till then the existing State law would apply.” Sheikh said “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.”
Consequent upon Delhi Agreement, J&K Constituent Assembly made special provisions for State Subjects from Section 6 to 9. As explained by Sheikh Abdullah, the ‘State Subjects’ underwent change to ‘Permanent Residents’ which is defined in Section 6 which expanded the scope of definition by making a provision that any Indian citizen having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date (May14, 1954). A provision was also made for those state subjects who migrated to POK and return on valid document for resettlement. Constitution doesn’t provide time limit for it and remains open ended.
While Maharaja Hari Singh was motivated to issue State Subject notifications to prevent Englishmen, Punjabis and probably others too, 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 imperative.
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 is discriminatory law, insertion of Article 35-A was found necessary to grant constitutional safeguard to prevent Courts to strike down it as ultra vires. But many still holds it a fraud on the Constitution as it has neither mandate of Constitution nor of the 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 of the petition is, whether insertion of new article (Article 35- A) in the Constitution for J&K falls under the meaning of “exception or modification” as mentioned in Article 370 cl (1) (d)? The Presidential order clearly says, “After article 35, the following new article shall be added” Whether ‘addition’ of new article is covered by “exceptions and modifications” or amounts to amendment of the Constitution? Article 370 cl 1 (d) does not vest power of amendment in the President which is the exclusive constituent right of Parliament under article 368.
One valid argument is that President cannot invoke drastic powers from a “temporary provision” i.e. Article 370 (1) 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.
While Permanent Resident law is very core to J&K’s “special status” that 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 which were given constitutional protection 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 there no legal force to deprive women of their right of permanent resident on marrying non state subject. The J&K High Court in Dr. Sushila Sahani’s casein 2002 held 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 get “Jammu and Kashmir Permanent Resident Status (Disqualification) Bill 2004” passed to give legal support to the discrimination to women but could not succeed in Legislative Council. A Muslim woman has also approached the Apex court against gender bias of State Subject law on which notices have been issued to both J&K and Central Govt on it.
Hypothetically, what will be the options if the SC strikes 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. One option would be to seek amendment of Article 35 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 and also remove gender bias and restore state subject rights of women 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 these views, the Supreme 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 Apex Court’s judgment.
(The writer is former Secretary Information, health, transport, CAPD departments and a member of Public Service Commission, feedback: [email protected])
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