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Understanding the controversy over Article 35A and way forward

Jammu and Kashmir is an integral part of India. But the state has been an emotional issue to most of the Indians for different reasons. Majority Hindu population sees Jammu and Kashmir as a half complete agenda. Despite claims and understanding that Jammu and Kashmir is an integral part of India, the state still enjoys the status of a special state with autonomy with regard to qualification to become a member of legislation, purchase of land and employment. The permanent residents of Jammu and Kashmir enjoy some reserved rights not available to Indian citizens coming to Jammu and Kashmir from other states. On the other hand the permanent residents of the state, majority of whom are Muslim minorities with Kashmiri specialty, feel that special status to them and autonomy is not justified only on technical basis provided by article 370 and article 37 A of the Indian constitution, but it is also important for maintaining historical and cultural identity of the state otherwise people from other state of India, especially Hindu majority would change the demography and unique cultural identity of Jammu and Kashmir. Both the groups have their own logic which seems justified in their own right.  However, both the sides need to understand the reasons of controversy. It is believed by the majority Hindu community of India that keeping Jammu and Kashmir as a special status state under the article 70 and 7 A is an impediment to constitutional and territorial integrity of India and also allows Pakistan a perpetual adversary to take advantages of Kashmiri population which is predominantly Muslim. The majority population of Jammu and Kashmir on the other hand feels that the proposal to remove article 35A given under article 370 to the state of Jammu and Kashmir is being mooted by Hindu rightist nationalist forces led by the Rashtriya Swayamsevak Sangh under a hidden agenda to end Kshmiriyat by altering demographic, legislative and employment structure.

What is article 35A?

Article 35A of the Indian Constitution empowers the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India on 14 May 1954, “in exercise of the powers conferred by” clause (1) of Article 370 of the Constitution, with the concurrence of the Government of the State of Jammu and Kashmir. In July 2015, an RSS-backed think-tank called the Jammu & Kashmir Study Centre first came up with the idea to challenge Article 35A in the Supreme Court. A petition was filed in the Delhi High Court against the Article. Later, it was also challenged in the Supreme Court.

How Delhi Agreement was reached?

Prior to 1947, Jammu and Kashmir was a princely state under the British Paramountcy. The people of the princely states were “state subjects”, not British colonial subjects. In the case of Jammu and Kashmir, the political movements in the state in the early 20th century led to the emergence of “hereditary state subject” as a political identity for the State’s peoples, and the legal provisions for the recognition of the status were enacted by the Maharaja of Jammu and Kashmir between 1912 and 1932. The 1927 Hereditary State Subject Order granted to the state subjects the right to government office and the right to land use and ownership, which were not available to non-state subjects.

Following the accession of Jammu and Kashmir to the Indian Union on 26 October 1947, The Maharaja ceded control over defence, external affairs and communications (the ‘ceded subjects’) to the Government of India. The Article 370 of the Constitution of India and the concomitant Constitutional Order of 1950 formalised this relationship. Discussions for furthering the relationship between the State and the Union continued, culminating in the 1952 Delhi Agreement, whereby the governments of the State and the Union agreed that Indian citizenship would be extended to all the residents of the state but the state would be empowered to legislate over the rights and privileges of the state subjects, who would now be called permanent residents.

The Constitution (Application to Jammu and Kashmir) Order, 1954

The Constitution (Application to Jammu and Kashmir) Order, 1954 was issued by President Rajendra Prasad under Article 370, with the advice of the Union Government headed by Jawaharlal Nehru. It was enacted as a subsequent to the ‘1952 Delhi agreement’, reached between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which dealt with the extension of Indian citizenship to the Jammu and Kashmir “state subjects”.

The state is empowered, both in the Instrument of Accession and the Article 370, to decree exceptions to any extension of the Indian Constitution to the state, other than in the matter of ceded subjects. So Article 35A is seen as an exception allowed by the Article 370, clause(1)(d).

Bakshi Ghulam Mohammad of the Jammu and Kashmir National Conference was the Prime Minister of Jammu and Kashmir at the time of the 1954 Presidential order.

The controversy about Article 35A

As the Article 35A was added to the Constitution by the executive head without any discussion in the Parliament, questions have been raised about the manner of its enactment. The Jammu and Kashmir Constitution, which was adopted on November 17, 1956, defined a Permanent Resident (PR) of the state 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 Jammu and Kashmir state legislature can alter the definition of PR through a law passed with two-thirds majority.

Text of the Article 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 of 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.”

Legal Implications

  • Jammu and Kashmir Constituent Assembly incorporated in Jammu and Kashmir Constitution discriminatory provisions under Section-51 (Qualifications for membership of the Legislature. – A person shall not be qualified to be chosen to fill a seat in the Legislature unless he is a Permanent Resident of the State), Section- 127 (Transitional provisions. – Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as service or post under the State, shall continue in force so far-as consistent with the provisions of this Constitution) and Section-140 (The elections to the Legislative Assembly shall be on the basis of adult suffrage ; that is to say, every person who is a permanent resident of the State and who is not less than Eighteen years of age on such date …), etc.
  • No person who is not a Permanent Resident of Jammu and Kashmir can own property in Jammu and Kashmir.
  • No person who is not a Permanent Resident of Jammu and Kashmir can obtain job within Jammu and Kashmir Government.
  • No person who is not a Permanent Resident of Jammu and Kashmir can join any professional college run by government of Jammu and Kashmir or get any form of government aid out of government funds.

Criticism OF article 35A

The legality issues pointed are:

  1. Article 35A was not added to the Constitution by following the procedure prescribed for amendment of the Constitution of India under Article 368. Article 370 does not anywhere confer on the President legislative or executive powers so vast that he can amend the Constitution or perform the function of Parliament. It has been brought about by the executive organ when actually the right of amendment of the Constitution lies with the legislative organ. Therefore, it is, allegedly, ultra vires the basic structure of the Constitution since it violates the Constitutional procedures established by law.
  2. Besides carrying out many modifications and changes, this order ‘added’ a new “Article 35A” to the Constitution of India. Addition or deletion of an Article amounted to an amendment to the Constitution which could be done only by Parliament as per procedure laid down in Article 368. But, Article 35A was never presented before Parliament. This meant the President had bypassed Parliament in this order to addArticle 35A.
  3. The PRC classification created by Article 35A suffers from the violation of Article 14, Equality before the Law. The non-resident Indian citizens cannot have the rights and privileges, same as permanent residents of Jammu and Kashmir.
  4. This also meant that the amending power of Parliament under Article 368 of the Constitution itself was abridged in its application to Jammu and Kashmir, another amendment, without any reference to Parliament. When the President of India does not have legislative powers, he performed the function of Parliament.

The main objections

It facilitates the violation of the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property, if the woman marries a man not holding PRC. Therefore, her children are not given Permanent Resident Certificate and thereby considering them unfit for inheritance – not given any right to such a woman’s property even if she is a permanent resident.

  1. It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste and Scheduled Tribe people who have lived there for generations. The Valmikiswho were brought to the state during 1957 were given Permanent Resident Certificates on the condition that they and their future generations could stay in the state only if they continued to be safai-karmacharis (scavengers). And even after six decades of service in the state, their children are safai-karmacharis and they have been denied the right to quit scavenging and choose any other profession.
  2. The industrial sector & whole private sector suffers due to the property ownership restrictions. Good doctors don’t come to the state for the same reason.
  3. Children of non-state subjects do not get admission to state colleges.
  4. It ruins the status of West Pakistani refugees. Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu and Kashmir, they cannot enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu and Kashmir.
  5. It gives a free hand to the state government and politicians to discriminate between citizens of India, on an unfair basis and give preferential treatment to some by trampling over others, since the non-residents of the state are debarred from buying properties, getting a government job or voting in the local elections.

Views in favour of the article 35 A

According to constitutional expert A G 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 rights to other Indian states like Nagaland (Article 371A) and Mizoram (Article 371G) and notes that there are various provisions in the Indian Constitution which confer “special status” to several other states also, in varying degrees based on historical reasons, and remarks that no objections were raised on them. Since Article 370 was enacted on 26 November 1949 as part of the Constitution of India by the Constituent Assembly of India which was a sovereign body, he remarks, Article 35A “flows inexorably” from it. He recalls the Sheikh Abdullah’s report to Kashmir’s Constituent Assembly on 11 August 1952, which said, “it was 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. 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.”

Article 35 A protects the demographic status of the Jammu and Kashmir state in its prescribed constitutional form. Scholar Srinath Raghavan states, Kashmiris are apprehensive that any move to abrogate Article 35A would open the gates for a demographic transformation of the valley, an objective advanced by the Sangh Parivar groups as an ideal solution to the Kashmir issue. He further says that the state’s autonomy has been gradually eroded by various governments of Delhi through misuse of the provisions of Article 370, and remarks: “Kashmiris have come to regard the rights of permanent settlement as the only remaining piece of any meaningful autonomy.” Former Chief Minister of Jammu and Kashmir, Mufti Mohammad Sayeed, while speaking about the issue of West Pakistani refugees, has said, “before we do anything on this, we need to allay genuine fears that there is an attempt to change the demographics of the state.”

High Court of Jammu & Kashmir’s verdict in 2015

Noorani also points to the observations made by the High Court of Jammu & Kashmir in this regard, while delivering a judgement on 16 July 2015:

“The Parliament has no power to legislate law about the subject’s administration of justice, the land & the other immovable properties. […]

Article 35(A) of the Constitution of India, which has been applied to the State of Jammu and Kashmir, not only recognizes but clarifies the already existing constitutional and legal position and does not extend something new to state of Jammu and Kashmir. This article, on its own, does not give anything new to the State of Jammu and Kashmir. Article 14 of the Constitution of India, as has been made applicable to the State of Jammu and Kashmir, thus, gave equal protection of laws to the State subjects/citizens as a class apart. Similarly, article 19(1)(f) of the Constitution of India, which has been made applicable to the State of Jammu and Kashmir and till date continues to be in force in the State, recognizes the right to own, hold and dispose of property, which right otherwise is inherent in the State subjects/citizens of the State of Jammu and Kashmir, who stand defined in terms of Elans/Orders of His Highness and the Constitution of Jammu and Kashmir.

Laws have their own universe. They operate in matter and not in vacuum. The laws are located in time and space. In the State of Jammu and Kashmir, the immovable property of a State subject/citizen, cannot be permitted to be transferred to a non State subject. This legal and constitutional protection is inherent in the State subjects of the State of Jammu and Kashmir and this fundamental and basic inherent right cannot be taken away in view of peculiar and special constitutional position occupied by State of Jammu and Kashmir. Article 35-A is clarificatory provision to clear the issue of constitutional position obtaining in rest of country in contrast to State of Jammu and Kashmir. This provision clears the constitutional relationship between people of rest of country with people of Jammu and Kashmir.”

Progress towards application of provisions of Indian constitution in Kashmir

As an amendment to, or modification of, the 1954 order, 41 subsequent Presidential orders have been passed afterwards. According to the report of the State Autonomy Committee, the central government, through these Presidential orders, extended 94 out of 97 entries in the Union List to Jammu and Kashmir, and made applicable to the state 260 out of 395 articles of the Indian Constitution. They have been used to issue provisions and make changes, which include – replacing the elected Sadr-e-Riyasat (President of the State) with a Governor chosen by the Centre; changing the ‘Prime Minister’ of the state to Chief Minister; extending the powers of the Supreme Court and Election Commission to Jammu and Kashmir; and preventing the state Assembly from making any amendment to the Jammu and Kashmir Constitution.

Scrapping Article 35 A takes back Kashmir to the status given by instrument of accession

Kashmir advocate Zaffar Shah says, Article 35A has been added in the Constitutional Application Order 1954 and by questioning it, the entire Constitutional Application Order will have to be questioned. If the Court rules that Constitutional Application Orders are invalid, such a judgment will have to be made applicable to all the Constitutional Application Orders from 1950 till date. The Constitutional link between the Union and the State will be snapped and the position of the State will be same as it was before constitutional arrangements were worked out. So, if the order of 1954 is snapped, Jammu and Kashmir can, in theory, return to the pre-1954 constitutional arrangement, where the Centre’s powers were restricted to Defence, Foreign Affairs and Communications alone, according to the Instrument of Accession. Zaffar Shah states, it will also affect various provisions of the Constitution of the State and result in Constitutional crisis.

Zaffar Shah adds that the scope and extent of power of the President to apply Constitutional provisions with or without “exceptions” or “modifications” has already been subject matter of the decisions of the Supreme Court of India, and he opines, it is ruled to be co-extensive with the power to amend Constitution and includes the power to enlarge any existing provision or add new provision. He says the only requirement is that it has to be done by the President with “concurrence” of the Government of Jammu and Kashmir.

Stance taken by political parties of Kashmir

The major political parties of the Kashmir Valley, NC and PDP have remained in support to the preservation and safeguarding of Article 370 and Article 35A. In defense of Article 35-A, the Jammu and Kashmir state Government in November 2015, prepared a report which read, “though Article 368 has been applied to State of Jammu and Kashmir, that would not curtail power of President under Article 370 to amend any provision of Constitution of India in its application to Jammu and Kashmir”. It termed the PIL against the article as “legally misconceived, untenable and meritless”.

Article 370 is not an obstacle but a bridge to fully integrate Kashmir with India

In January 2017, the Chief Minister of Jammu and Kashmir, Mehbooba Mufti of PDP has commented that anybody raking up Article 370 & Article 35A repeatedly is hurting the soul of Kashmir. Vowing to oppose any such move, she said, “There will be no bigger anti-national thing than this because when you weaken this uniqueness of Kashmir through judiciary, then those forces in Kashmir Valley, who want to put an end to the composite culture in Kashmir Valley and want to have people from one community (Muslims) only, with one attire and one way of life, you will only make them successful.” Talking about BJP’s opposition to the state’s autonomy, she also said, “when the people of BJP talk of Article 370, they talk of technical integration. We have to make them understand that we also want that Jammu and Kashmir should fully integrate with India emotionally, technically.” She added that the integration which should have been done “emotionally and psychologically”, was not done completely, which is needed, and for it, she said, Article 370 is not an impediment but a bridge which connects the state of Jammu and Kashmir and the rest of India. Previously in 2014, during a similar debate regarding autonomy of Jammu and Kashmir and Article 370, Mehbooba Mufti stated that fiddling with Article 370 could lead to anarchy in the state. She said, such “irresponsible utterances” should be stopped as they could have serious repercussions in Jammu and Kashmir, besides having the potential of spoiling the atmosphere of inclusiveness and peace which the Indian government aims at achieving. Raghavan has stated that any attempt by Delhi to tamper with the state’s autonomy “is bound to result in a massive backlash”.

Way forward

Jammu and Kashmir is a complex problems due to involvement of historical, cultural and identity issues. The problem is further aggravated due to criminal meddling of Pakistan by aiding and abating the secessionist forces in the name of Islam and human rights violation. India is proud to have given Kashmir special status and privileges apart from all the constitutional rights available to Indian citizens. This is evidence to success of Indian democracy that Jammu and Kashmir is not only part of the electoral process of India, but also many Kashmiris are contributing in various arenas of India like other Indians do. Today the Kashmiri Muslims of India are more liberated, free and assimilated than minorities of any other developing country.  India has every right to believe and profess that Jammu and Kashmir is an integral part of India. The only problem is that there is haste in some people’s mind to fully integrate Kashmir with the mainstream of India in terms of Indian constitution. But this haste would be counterproductive if a solution is conceived in terms of legal enforcement without properly understanding the context and desire of Kashmiri people. Nobody has given a better approach to the solution of the problem of Kashmir than what was suggested by our former Prime Minister Atal Bihari Bajpayee who offerd three pronged solution- Kashmiriyat, Jamhuriyat and Insaniyat (Kashmiri Identity, Democracy and Humanity). We regret not to have a wise and seasoned politician like him today who can think above politics! Really we miss such clear headed and rightly motivated leaders among us who were acceptable cutting across the spectrum of political ideologies because their intents were never doubted. Trust from both the sides is the key to any amicable solution.  Pakistan has already failed and India is competent enough to deal with Kashmir— its very own heaven!  Nevertheless meddling with the issue for political gains is a dangerous game!

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