Friday, March 29, 2024
 
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Article 35A: a fraud on Constitution or necessity?
Straight Talk



By K. B. Jandial



Unknown in the public domain till recent times, Article 35-A of the Constitution of India has raked up an intense debate in Kashmir. Political narrative has a paradigm shift. From the wild cries of “erosion of autonomy” and forewarning of “annulment of accession of J&K with India in the event of abrogation of Article 370 of the Constitution”, today Article 35-A is the focus of Kashmir press. Kashmir got a new issue to lash at RSS and BJP.



Contrary to the popular perception across the country including in J&K, it is Article 35-A of the Constitution and not Article 370, that helps J&K State in debarring all non state subject Indians from acquiring property or getting Govt. jobs.


Even though the constitutional validity of Art. 35-A was challenged last year( July 23, 2014)by a Delhi based NGO, “We, the Citizens” in the Supreme Court, Kashmir rocked only recently when RSS sponsored think tank “Jammu & Kashmir Study Centre” began its campaign on Article 35-A which it considers 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.



The Supreme Court on August 17, 2015 granted time up to the first week of November this year to J&K and Central Govts to file their response on 51-page petition which A G Noorani describes as “reeks of emotive politics, factual errors, and far- fetched argument which are manifestly absurd”. Noorani feels that the Apex Court should not entertain such petitions. 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.



The Supreme Court is all set to examine the constitutional validity of the Presidential order issued under Article 370 of the Constitution. In a way, the Presidential order of 1954 made chapter III of the Constitution relating to fundamental rights, inapplicable to the State by resorting to “exceptions or modifications”. It safeguards special law relating to permanent residents granting special privileges to them in respect of acquisition of immovable property and Govt. employments to the exclusion of all other Indians. It is probably for the first time that the people are learning about existence of Article 35- A powered by article 370 as it is not found in most of the books of the Constitution of India and as such it explains people’s ignorance.



While Article 370 Cl 1 (c) says that the provisions of articles 1 and 370 shall apply in relation to J&K but at the same time, clause 1(d) provides a mechanism for extension of other provisions. It mandates that “such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify”. Such order is required to be issued with the “concurrence of the State Government.




Invoking powers vested in him under article 370 cl (d), the President issued “The Constitution (Application to Jammu & Kashmir) Order 1954 on May 14, 1954 (C.O.48)” where under many provisions of the Constitution and entries of schedules were made applicable 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. The Constituent Assembly sanctified this controversial law five decades after these were notified by Maharaja Hari Singh. The PM received a high level delegation from J&K headed by Sheikh Abdullah himself on 20th July 1952,. The other members were Mirza Afzal Beg, Bakshi Ghulam Mohammed, Girdhari Lal Dogra & D. P. Dhar, all senior members of the Cabinet and members of the Constituent Assembly.



On July 24, 1952 Nehru informed Lok Sabha about Delhi agreement. On State subject provisions,he 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 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.



“And in the state subject’ notification by the Maharaja, they defined grades of subjects….. And unless you come in one of these classes, you just cannot acquire land there, or any immovable property. 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 liberalize it, but nevertheless to have checks on the acquisition of lands by persons from outside. So far as we are concerned, 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. However, we agree that this should be cleared up. The old state subjects definition gave certain privileges regarding acquisition of land, the services, and other minor things, I think, State scholarships and the rest. So, we agreed and noted this down. (cl (5) of article 19 safeguards such existing laws).
“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”, Pt Nehru explained the agreement.


Sheikh Abdullah too made a statement to the Constituent Assembly on Delhi Agreement on 11th August, 1952. On State Subject law, he said: “It was agreed that in accordance with Article 5 of the Indian Constitution persons who have their domicile in the Jammu and Kashmir State shall be the citizens of India. 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. It was also agreed that special provision should be made in the laws governing citizenship to provide for the return of those permanent residents of Jammu and Kashmir State, who went to Pakistan in connection with the disturbance of 1947 or in fear of them as well as of those who had left for Pakistan earlier but could not return. If they returned, they should be entitled to the rights, and privileges and obligations of citizenship.




“There are historic reasons which necessitate 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. The Hon’ble Members are perhaps aware that 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. I am glad to say that the Govt. of India appreciated the need for such a safeguard. 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. The importance of the fact that State Legislature shall retain powers to be able to effect such modifications becomes obvious in this context.”


The historic Delhi Agreement records the agreement reached on the existing State Subject law in following manner:
ii.“it was agreed between the two Governments that in accordance with Article 5 of the Indian Constitution, persons who have their domicile in Jammu and Kashmir shall be regarded as citizens of India, but the State legislature was given power to make laws for conferring special rights and privileges on the ‘state subjects’ in view of the ‘State Subject Notifications of 1927 and 1932: the State legislature was also empowered to make laws for the ‘State Subjects’ who had gone to Pakistan on account of the communal disturbances of 1947, in the event of their return to Kashmir;”


Consequent upon Delhi Agreement, J&K Constituent Assembly made special provisions for State Subjects from Section 6 to 10. As explained by Sheikh Abdullah, the term State Subject underwent change to Permanent Residents which is defined in Section 6. In addition to existing two classes of State Subjects as per Maharaja Notifications, Section 6 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 make it time bound.



While Maharaja Hari Singh, as Nehru explained, was motivated to issue State Subject notifications to prevent Englishmen and probably others too, to take Govt. jobs & acquire land 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.



On the face of it, Article 35-A is in direct conflict with Articles 14 and 16 of the Constitution and is highly discriminatory in nature. Article 14 grants to all citizens right to equality before the law or equal protection of the laws while Article 16 provides a right of equality of opportunity in matters relating to employment for appointment to any office under the State. Therefore, Article 35-A impinges upon the fundamental rights of other citizens of India. Since J&K’s existing law granting special privileges to its State Subjects to the exclusion of all other Indian citizens amounts to violation of their fundamental rights, insertion of Article 35-A was found necessary to grant constitutional safeguard from being strike down by the courts as ultra vires. But many still holds it a fraud on the Constitution as it has neither mandate of Constitution nor of Parliament.



Empowering Parliament to amend the Constitution, Article 368 (i) 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.”


On the other hand, article 370 lays down a separate mechanism for extension of other provisions of the Constitution to J&K subject to such “exceptions and modifications” as the President may by order specify.



Does insertion of Article 35- A in the Constitution for exclusive application to J&K amount to “exception or modification” as prescribed in Article 370 cl (1) (d)? If not, then does the President have power to add a new article in the Constitution by an executive order bypassing the Parliament which exercises its constituent power while amending the Constitution ? Doesn’t addition of new article by President amount to amendment of the Constitution for which the power vests alone in Parliament under article 368? Who is sovereign- Parliament, President or J& K Legislature? It is quite a complicated issue.



The arguments of J&K Sturdy Circle cannot be dumped in to dustbin. It questions President invoking 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.



Arun Jaitley as LOP Rajya Sabha posted on Facebook on Dec. 5, 2013 that “Should a provision like Article 35-A, which exists only because of Article 370 have place in any civilized society?” Jaitley asked.

“It is discriminatory and violative of fundamental rights. On a bare reading, it violates the basic structure of the Constitution. I wonder if its constitutional validity will be challenged at some point of time.” Whether he still holds same views as a Minister of NDA but article 35-validity has been challenged.


The contrary view, coming from Kashmir, 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.


Notwithstanding these views, the Supreme Court may examine provisions of Article 370 that vests in the President unusual powers to extend others provisions of the Constitution of India with suitable “exception or modification”. If SC strikes down this constitutional scheme, J&K would return to 1954 position, another dangerous consequence. And if it upholds the constitutional scheme under article 370, it will have to determine whether addition of article 35-A comes under the expression “exception or modification”? As a student of constitutional law, amendment is all inclusive, includes addition, deletion, exception and modification but the country has to wait for 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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