Friday, October 19, 2018
 
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Can polls, threats, shutdowns coerce SC on article 35A?
Straight Talk



K. B. Jandial

Under challenge Article 35 A of the Constitution has once again triggered a spell of tension bordering communal polarisation in J&K as 6th August date of its hearing in the country’s Apex Court draws nearer. Kashmir valley without exception is almost united with everybody, be it mainstream political parties, civil society, traders and hotel association, Bar Association or separatists, on retention of this contentious Article and successfully stoked emotions on it.





PDP Chief Mehbooba who was in power in coalition with BJP till yesterday is in the forefront against diluting State’s special status, threatening “catastrophic ramifications for the entire country” in the event it is declared ultra-virus. Last year, when in power, she had even made a common cause with Farooq Abdullah for opposing “fiddling” with Article 35A even when she had claimed that PM Modi had given her “100% assurance on now debunked “Agenda for Alliance” which was based on BJP’s solemn commitment on “status quo” on constitutional position of J&K- Articles 370 & 35A. She had said that for the “idea of India to accommodate the idea of Jammu & Kashmir” article 35A should not be removed. But now her tone and tenor has changed as both parties are no longer bound by this “Agenda for Alliance”. NC has sought to link Article 35A with accession of J&K with India.



For the first time, Jammu too is rising for the cause- scrapping of Article 35A even though contrary voices too have been heard on this issue but Jammu’s sentiments are against retention of this Article which is perceived to be gender bias besides abuse of power by the President of India. J&K High Court Bar Association, Jammu has decided to be impleaded as party in the case to oppose the impugned article. So is the HC Bar Association, Kashmir but in favour of its retention. Political parties of Kashmir too are following the same route.



While all are pulling their socks to put up forceful arguments for its scrapping or retention, J&K Governor administration has added a new dimension that may help in defusing the surcharged atmosphere but postpone the final adjudication on the constitutional validity of this discriminatory and unconstitutional Article. The State Govt standing Counsel has filed application seeking the adjournment “on account of the ongoing preparation for the upcoming Panchayat and urban local body and municipal elections in the state”. The main reason for seeking deferment of the hearing of this sensitive issue is the anticipated law and order situation. Earlier media report had suggested that the Governor had requested the Home Minister to seek deferment of the hearing on Article 35A in the Supreme Court until the elected government is in place in the state, in view of the sensitivities and sensibilities on Article 35A are quite high. It will not suit Modi Govt politically.



Supreme Court is hearing four petitions seeking quashing of this provision. Attorney General has yet to file 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. In all, there are now four petitions pending before the SC.
Mehbooba led PDP-BJP Government of J&K, in its reply before the SC, had sought the dismissal of matter challenging Article 35A on various grounds and had stated that the “accession” of J&K to India is “limited in scope and not absolute”.



Article 35A was added to the Constitution by a Presidential Order of 1954 that protects from a challenge in courts any law granting special rights and privileges to the permanent residents of J&K granted by the State legislature on the ground of being violative of fundamental rights of the people of rest of India as enshrined in Part-III of the Constitution.




Article 370 is the mother of all Presidential orders including Article 35A which gives constitutional protection to discriminatory “State Subject” law. Originally, Article 1 and Article 370 of national Constitution were applied to J&K (Art 370 cl1 (C) but the President has been vested with power by Art 370 cl 1 (d) to extend other provisions of the Constitution through Presidential order with the “concurrence” of State Govt. Article 370 Cl 1(d) empowers President only to extend other provisions of the Constitution of India to J&K only with “exception or modification”. Interpretation of “exception or modification” is the crux of the matter.




“The Constitution (Application to Jammu & Kashmir) Order 1954 extended many provisions of the Constitution and entries of schedules including Article 35A to J&K. Article 35A was drafted adopted by the State Constituent Assembly on February 15, 1954 and the State Govt recommended it to the President who issued the order on May 14, 1954. It inter alia, says, “After Article 35, the following new article shall be added.” Thus Article 35A came into being which saves existing of future legislation enacted with respect to permanent residents and their rights for employment under the state, acquisition of immovable property, settlement in J&K or scholarships and other forms of aid, from being declared by courts “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.”



While it has roots in Maharaja’s notification no. 1-L/84 of 20th April 1927 read with notification no.13/L dated 27th June, 1932, but Article 35-A in the Constitution 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. Sheikh was candid enough to add that “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. The ‘State Subject’ term was changed 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. Section 9 provides special provision to define or alter the definition of permanent residents which in a way remotely correspond to Class III “State Subjects” enshrined in Maharaja‘s 1927 notification that talked about those who were permanently residing within the State on rayatnama and ijazatnama. While the State Constitution didn’t specifically adopt it but Maharaja’s spirit of including more people as State Subjects can be addressed by altering the definition of Permanent Residents. This provision could have been used for West Pak refugees and Valmikis brought from Amritsar for sanitation in Jammu but not done till date.





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.




There are three main legal issues in Article 35A involved in this case. Can the President over-ride Parliament’s amending power by an Order? Can President add a new provision under Article 370? Does it violate “the basic structure” of the Constitution? Some argue that Article 35A has made Part- III of Indian Constitution relating to fundamental rights, inapplicable to the State by resorting to “exceptions or modifications”.



Article 35A is decidedly a controversial one and its constitutionality can only be settled by Supreme Court and none else. Kashmir based political parties including Congress have brought the issue on streets. All sorts of threats are tossed including reopening of accession of J&K with India if SC delivers adverse order. A battery of legal luminaries of Kashmir including many having ideological affinities with separatists have descended in Delhi to intervene in the case and put forth their arguments against the petition and in favour of Article 35A constitutional validity. Equally leading lawyers from Jammu would be arguing against the existing law. It is the SC that has to settle the issue once for all.



Deferment of hearing on the ground of holding elections and possible backlash and law and order situation would have wider ramifications. In J&K, Local Bodies polls are slated in September followed by elections for Panchayats and this process would continue till yearend. Next year, Lok Sabha polls are slated and if Assembly is dissolved then another phase of election process would start. So, this issue should be kept under the carpet. if this is the valid ground for courts to restrain from hearing critical cases, then law and order situations would be created by interested political parties to seek deferment of hearing or judgment in sensitive matters. Babri masjid case could be one such case.
Courts have judicial discretion to hear or not to hear case on such grounds. No one can question court’s judicial discretion except to appeal in the next higher court. In this case, it is before the Apex Court and whatever it decides cannot be challenged. Let’s see how Supreme Court decides on the hearing on Article 35A on Monday.



(The writer is former Secretary Information, health, transport, CAPD departments and a member of Public Service Commission, feedback: [email protected])




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