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Challenge to Article 35-A: ILLEGAL, IMMORAL, UNETHICAL

September 5, 2017

For the first time ever it has begun to feel real and tangible. The all-out attempt of the Hindu right-wing parties led by the Bhartiya Janata Party (BJP) to strip the state of what is left of its special status is nothing short of a diabolical plan to convert the Instrument of (conditional) Accession into a virtual annexation of Jammu and Kashmir. The state has gone from one crisis to another in the last seventy years, but the threat besieging it political status now has perhaps no precedent at all.

The call for rescinding the special status of Jammu and Kashmir and its constitutional and legal validity grew shriller and louder with the BJP-PDP alliance coming to power in the state. The Bhartiya Janata Party has played a treacherous role by systematically backing the adversaries of the special status of the state. Even though the party, by virtue of being an alliance partner of the PDP, stands committed not to do anything that would in any way harm or weaken the special status of Jammu and Kashmir, it has not lost any chance to voice its strong opposition to it and reiterate that it believed in complete merger of Jammu and Kashmir with the Indian union and the abrogation of all constitutional and other provisions that guarantee its special status.
Before the PDP-BJP alliance took power in the state it arrived at a consensus on many political issues of which the inviolability of the present status of the state was paramount. The Agenda of Alliance expressly states “…… considering the political and legislative realities, the present position will be maintained on all the constitutional provisions pertaining to J&K, including the special status in the Constitution of India.”

As the law requires, the ministers from the BJP took oath of allegiance to the constitution of Jammu and Kashmir and not that of India, in presence of all its party stalwarts including the Prime Minister, with Jammu and Kashmir‘s flag flying high along the Indian tricolour at the oath ceremony. The BJP leaders began murmuring against its provisions while the function was barely over. The BJP doesn’t appear to be honest in seeing the implementation of the AOA, especially the highly important political part of the document that speaks about the constitutional guarantees given to Jammu and Kashmir at the time of accession or for that matter safeguarding the special status that the state is supposed to enjoy within the Union.
In fact, the BJP leaders whenever the occasion arose spoke about these constitutional guarantees with utter disrespect and made no bones in saying that they wanted to get rid of the special status of the state and believe in complete merger of the state with India. At times, some second rung party functionaries were fielded to reiterate party’s commitment to “Eik Nishan, Eik Vidhan”, saying that Article 35A was never a part of the AOA. The BJP also exploited the disgruntled Kashmiri Pandits to pour venom over the special status and Article 370 which is evident from the slanderous comments that are made in TV studios by these so called Pandit leaders and intellectuals. In a bid to giver further push to its anti-Kashmir agenda, Charu Wali Khan has now been brought to make a backdoor attempt to challenge the validity of the special status and seek its abrogation.
The PIL, filed by a Delhi-based NGO, closely linked with the RSS has sought Article 35A to be declared unconstitutional, contending the President could not have amended the Constitution by the 1954-order and it was supposed to be a temporary provision. It said the J&K government, under the guise of Article 35A and Article 370 which grants special autonomous status to the state, has been discriminating against non-residents who are debarred from buying properties, getting a government job or voting in the local elections.
Another contention made on the basis of gender discrimination says that by virtue of the said article, Kashmiri women marrying outside the state lose all their rights on the property, which however is not a factual statement. Way back 2002, a full bench of Jammu and Kashmir High Court comprising of Justice V Jhanji, Justice T Doabia and Justice M Jan in J&K Vs Dr Sushila Sawhney has already held that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of J&K. So the question of gender discrimination does not arise at all and this frivolous argument is being raised only to mislead the public opinion as also the honourable judges of the Supreme Court.
The grounds on which the validity of 35A is being challenged is that the President had no powers to insert this article on the basis of the authority he enjoys under Article 370 and that t it could have been introduced in the Constitution only through a constitutional amendment under Article 368, and not through a Presidential Order under Article 370. However, the fact remains that the Supreme Court has in three different cases held threadbare discussions on this issue and all the earlier pleas against were rejected by the court in the past. .
In one such case, Puranlal Lakhanpal vs The President of India and Others, a five judge bench of the Supreme Court, way back in 1961, held that “when through an order under Article 370, the President applies any provision of the Indian Constitution to J&K, the term “modification” must be considered in its “widest possible amplitude”. It will not be limited to making only partial changes to the provision, but will include the power to “extend” and “enlarge” the constitutional provision, including making a “radical transformation”.
Again in 1969, in another landmark judgement, another five-judge Bench put its seal of affirmation on this view in Sampat Prakash vs State of Jammu & Kashmir. In December 16, 2016, in another case, a two-judge Bench of the court followed the two earlier Constitution Bench decisions to reiterate that the Presidential Order can “extend” or “enlarge” the provisions of Indian Constitution in its application to J&K. Therefore there is no reason whatsoever to go for a further review of the constitutional validity of Article 35A that safeguards the Act of the state legislature relating to benefits given to Permanent.
And if the court now accepts the argument challenging Article 35A, the extension of the Fundamental Rights and every other provision of the Indian Constitution to J&K through consecutive Presidential Orders (all amendments to the 1954 mother order) will cease to apply. Only Article 1 and Article 370 of the Indian Constitution will then apply to J&K, leading to a grave constitutional crisis. In such a scenario, the court will have to undo the constitutional law on the subject over the last six decades, as well as the application of almost all the Presidential Orders issued in last 60 years for extending several provisions of the Indian Constitution to Jammu and Kashmir.
It is interesting to note that instead of fighting openly against the Article 370 of the constitution of India, that has been the target of the right wing lobby from day one, the validity of Article 35A is being challenged because the advocates of Kashmir’s merger with the rest of India know it well that the abrogation of Article 370 is not that easy to be accomplished. Even though termed as a temporary provision of the Indian constitution, the sub provision of the article clearly states that it could be abrogated by the President of India only after a formal resolution to this effect is adopted by the Constituent Assembly of Jammu and Kashmir. With the said Assembly having expired in 1956, for the abrogation of 370 one needs a fresh constituent assembly and the new assembly would be within its rights to discuss the instrument of accession and state’s position within the Indian union again. This is bound to open a Pandora’s Box which RSS and its functionaries know well. Therefore they have planned a new strategy, i.e. to strike against 35A that guarantees the distinct and special identity of Jammu and Kashmir and without which state would automatically be brought at par with other states, depriving the original citizens of Jammu and Kashmir all their basic rights, privileges and other reservations.
Article 35A empowers the Jammu and Kashmir legislature to define permanent residents of the state. It was added through the Constitution (Application to Jammu and Kashmir) Order, 1954, issued under Article 370, by the President of India. Later on, when the Jammu and Kashmir Constitution was adopted on November 17, 1956, it defined a Permanent Resident as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has lawfully acquired immovable property in the state.
The Article provides that a person will be treated as a “Permanent Resident of J&K” only in accordance with the law which was already in force in the State before May 14, 1954. In other words, a person who does not qualify as a Permanent Resident of the State under law as was applicable before May 14, 1954 cannot now become Permanent Resident of the State. The said law is also protected by the Constitution of Jammu and Kashmir.
It further provides that the Permanent Residents will continue to enjoy Special Rights and Privileges in the matter of (1) Employment under the State (2) Acquisition of immovable property in the State (3) Settlement in the State (4) Scholarship and aid as the State Government may provide. Any law which gives these Special Rights and Privileges to the Permanent Residents of the State cannot be declared null and void by any Court on any ground.
New Delhi’s claim, all along has been that Jammu and Kashmir became its integral part, on the basis of the Instrument of Accession entered by the then ruler Maharaja Hari Singh on 26th October 1947 and subsequent ratification of that Instrument by the J&K Constituent Assembly on 5th November 1951. With the instrument of accession laying down certain conditions which were duly accepted by the Indian government, there rose a need for a tunnel from where the provisions of the Indian Constitution could land in Jammu and Kashmir and for this purpose Article 370 was inserted in the constitution of India giving the President of India extraordinary powers to make certain laws made by the Indian parliament applicable to Jammu and Kashmir. The insertion of Article 35A in the Indian Constitution by The Presidential Order 1954 also flows from the powers given to the President under Article 370. Thus challenging Article 35A would mean challenging the only constitutional link between the state and the union.
A close reading of the historical facts leads one to the fact that when the letter of conditional acceptance from Maharaja Harisingh came from Mountbatten, he reiterated India’s earlier stand of giving the people of J&K an opportunity to determine their future. In 1947 when the constitution of India was being formulated it was made applicable to all the states which had agreed to be the part of the Union and merge with it. The state of J&K did not agree that the Constitution of India should be made applicable to it in the same manner as it was to the other states thus acknowledging the limited nature of accession. A special Article 370 was incorporated and therein, empowering President to extend the provisions of Constitution to the state with such modifications and exceptions as he may notify.
In 1952, the Delhi Agreement between Nehru and Sheikh contained 10 points one of which was that the state legislature would have the powers to regulate the rights and privileges of permanent residents or state subjects as defined in the 1927 State Order. It was agreed that in accordance with Article 5 of the Indian constitution persons who have their domicile in J&K shall be the citizens of J&K. 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 regards to the acquisition of immovable property. It was because of historical reasons that in late 1920s people agitated for the protection of their bonafide right against superior competing interest of the non-residents of the state. It was in fact on the demand made by the Dogras of Jammu and Pandits from Kashmir, who felt threatened by the heavy influx of outsiders mostly from the undivided Punjab. These people, better educated than Dogras and Pandits and having enough material resources, were seen to be keen to get settled in Jammu and Kashmir and if not stopped they would have taken the lion’s share of the property and government jobs besides other benefits in the state. The then Maharaja understood the situation that would arise of the influx of these outsiders leading to the virtual annihilation of the local population and therefore he promulgated notification of 1927, for safeguarding the rights of the local populace and coined the term of :State Subjects”.
In his statement to the Lok Sabha on the Delhi agreement, Nehru had said: The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time past, in the Maharaja’s time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there. And that continues. So the present Government of Kashmir is very anxious to preserve that right 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. Now they want to vary the old Maharaja’s laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. However, we agree that this should be cleared up. The old state’s subjects definition gave certain privileges regarding this acquisition of land, the services, and other minor things, I think, State scholarships and the rest.
‘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 the acquisition of immovable property, appointments to services and like matters. Till then the existing State law should apply.’
In the Instrument of Accession Harisingh accepted only three subjects on which the Indian union could make laws for the state, including Defence, External Affairs and Communication. Clause 7 of the Instrument reads: “Nothing in the instrument shall be deemed to commit me in any way to the acceptance of any future constitution of India or fetter my discretion to enter into arrangement with the government under any such future constitution.” Since the Delhi agreement was followed by the Constitution (Application to J&K) Order 1954 on May 14 1954, its preamble says that it was made “with the concurrence of the government of J&K”.
After the expiry of the Constituent Assembly, for all legal and other purposes, it is not only 35A but all the Presidential Orders which cannot be scrapped because of non-existence of the ratifying authority and hence for any such step the requirement will be that of the formation of new constitution which for sure will be something called extra constitutional measure and would in turn mean the death of the existing constitution that will ultimately take the state back to the position it had been in pre 1947.
There is no constitutional way to remove Article 370, especially because Article 1 of the Indian Constitution (name and territory of the Union) is applicable to J&K only through Article 370. But if the challenge to the constitutionality of the 1954 Order is successful, all subsequent Presidential Orders will stand automatically invalidated. The residents of J&K were deemed as Indian citizens through these Orders; they were used to extend 94 out of 97 entries in the Union List, and 260 out of 395 Articles of the Indian Constitution, to J&K; and to impose central rule in J&K.
Dr Karan Singh, former Sadr-e-Riyasat of Jammu and Kashmir and one of few eyewitnesses to whole drama that unfolded between New Delhi and Jammu and Kashmir in early 50’s has rightly said that “India needs to bite the bullet at some point in time and resolve it”, asserting that state’s relation with India was “governed by Article 370.”
In what can be called as historical speech in Rajya Sabha, Karan Singh narrated the events of state’s accession with Indian union saying that: The day my father signed the IOA, it became integral part of India. …..However please remember something more. My father acceded for three subjects only which included defence, communication and foreign affairs. …….all others states subsequently merged but J&K did not merge with India……. J&K’s relation with rest of India is guided by Article 370 and the State Constitution “which I signed into a law.”
“There was a political agreement in 1952 between Sheikh Muhammad Abdullah and Jawaharlal Nehru; there was adoption of State Constitution in 1957 which I signed; subsequently there have been plethora of presidential orders which gradually applied increasing number of entries into it,” he said, adding “It is an integral part, but what exactly the relation will be…in many federal countries it varies…even China has one state, two systems…Hong Kong has a different system. So integral part doesn’t necessarily mean it will be exactly same as everything else”.
Similarly the argument that provisions of Article 35A were discriminatory as it denied the same rights to Indian citizens that are enjoyed by the state subjects is false, politically motivated and far from being true. Similar laws are found in the statute books of several other states where the right to property and other similar rights of the natives of a particular state have been safeguarded.
Eminent jurist and one of the most distinguished experts of Kashmir’s political and constitutional history, A G Noorani has discussed in detail the validity of the special status of Jammu and Kashmir. In one such write up he has demolished the case of the right wing thinkers that Art 370 or for that matter Article 35A were discriminatory.
According to Noorani, all the legal arguments against the article are groundless, and are raised with “communal-minded majoritarian” intentions. He refers to the various Articles in the Constitution that similarly provide special status and rights to other Indian states.
Citing Article 371A, Noorani argues that this proviso clearly says:
“Notwithstanding anything in this Constitution, – (a) no Act of Parliament in respect of – (i) religion or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the legislative Assembly of Nagaland by a resolution so decides.” This provision inserted in 1962 explicitly bars the Parliament of India from making any law in respect of “ownership and transfer of land” in Nagaland and also “its resources”. If some people single out Kashmir for hostile attention because of Article 370 and 35A of the Constitution of India, it is for reasons not hard to seek.
Similarly Article 371G on Mizoram says the same thing. It reads: “Notwithstanding anything in this Constitution, – (a) no Act of Parliament in respect of – (i) religious or social practices of the Mizos, (ii) Mizo customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Mizo Customary law, (iv) ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of Mizoram by a resolution so decides.” The Constitution of India is studded with special provisions which thus confer “special status” on certain States; of course in very in degrees for historical reasons. For example Assam, (Art. 371B), Manipur (Art. 371C), Andhra Pradesh (Art. 371D), Sikkim (Art. 371F), Arunachal Pradesh (Art. 371H), and Goa (Art. 371I).
According to Noorani, “Article 370 is part of the Constitution of India as it was enacted on 26 November 1949. And Article 35A flows inexorably from it. It is now 51 years old and only sanctifies the Maharaja’s Notification of 20 April 1927 which defines State Subjects and their right to hold property. Article 6 of the Constitution of Jammu & Kashmir, enacted on 17 November 1956, puts its seal on that Notification explicitly (vide Clause [3]). So, did the Delhi Agreement of July 1952 between the Prime Minister of India Jawaharlal Nehru and the Prime Minister of J&K, Sheikh Muhammad Abdullah. Kashmir would never have acceded to Indian, even in its hour of peril, if it knew that decades later communal minded persons would want to wipe out that Notification which Art. 35A sanctifies.
Legal experts believe that the petition before the Supreme Court deserves to be dismissed on the basis of the decision of the apex Court in at least two cases of the same nature. Those who advocate abrogation of Article 370 and 35A of the Indian constitution and those who demand that Jammu and Kashmir should be completely merged with the rest of India bringing it at par with other states, should be aware of the consequences that are bound to arise in case the present constitutional relationship of the state with the Union is changed. If the presidential order with regard to Article 35A is questioned or held unconstitutional, then all the Constitutional Application Order issued by the President, from 1950 till date stand null and void and thus the bringing an end to the constitutional relationship between Jammu and Kashmir and Indian union. Consequently legal and constitutional status of Jammu and Kashmir will revert to the position that stood in 1950, leading to a grave constitutional crisis, posing serious questions on the validity and legal standing of the instrument of accession.
In this background, New Delhi owes it to its constitutional, legal and above all moral and ethical responsibilities to ensure that the special status of Jammu and Kashmir guaranteed under the constitution is not weakened in any respect and it should therefore defend the same before the Supreme Court. There is no need to revisit this issue in view of the earlier judgements passed by the Supreme Court and the only thing that is needed is to ensure that the status quo is not disturbed as it would result in the fall of the edifice that the fathers of the constitution had put up to realise the dream of a secular and democratic India.
On Independence Day, Prime Minister Narendra Modi talked about Kashmir from the ramparts of Red Fort. He overruled the use of “Galee’ (Abuse) and “Goli” (Bullet) in dealing with the Kashmir problem. In Prime Minister’s words: Na gaali se samasya sulajhne waali hai, na goli se samasya sulajhne waali hai; samasya suljhegee har Kashmiri ko gale lagaa kar ke (The Kashmir problem cannot be solved either with abuse or bullets, but by embracing every Kashmiri). It it is now the time to put these words into action and ensure that the rights of the people of Kashmir guaranteed by the constitution be respected. And the first step in this direction will definitely be the stand that New Delhi will take before the Supreme Court to defend the lasts attack on these constitutional guarantees.


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