By M.J. Aslam
Any argument against Article 35-A of the Constitution of India in isolation from the political and social conditions in which partition of India, accession of JK with India took place and in which Orders and Notifications of 1927 and 1932 were issued by the then Ruler of JK Maharaja Hari Singh is patently bound to lead to wrong conclusions about it.
That said, let us briefly revisit the history and promulgation of Order and Notifications of 1927 and 1932 issued by Maharaja Hari Singh. The main objective behind those Orders & Notifications was to address to certain concerns that were raised and brought to the notice of the Sovereign Ruler. The people from erstwhile Punjab had started getting jobs in the Government Departments and purchasing land from the locals of the State of JK at an ever increasing scale. Feeling alarmed & threatened by the foreign intrusion into their homeland and likely trampling over their rights of employment and property, the residents of the State, predominantly non Muslim (Dogras of Jammu and Kashmiri Pandits), were the main opponents and “objectioners” to the “foreigners” likely going to change demography and officialdom of the State. “The alienation of the Kashmiris to Hari Singh was heightened by the continuing presence of ‘outsiders’ in government service, which led to a movement known as ‘Kashmir for the Kashmiris’, sponsored by the more educated Kashmiri Pandits. …”. (Kashmir in conflict by Victoria Schofield, (2013) page 17, emphasis mine). Hearing the voices of concern and addressing the same, the Sovereign King got “statutory” order defining “Hereditary State Subject” & recognising “Hereditary State Subject’s” exclusive rights of appointment in the government departments and the purchase and sale of land. The Order was passed to forbid the employment of non-State Subjects in the public services besides disallowing them to purchase land in the State of J & K. (Ibid, Kashmir in conflict). In simple words, such rights were not available to non-state subjects. The said Order was, by implication, replaced by the Notification 1-L/84 dated 20-04-1927 whereby the term “State Subject” was substituted for the term “hereditary state subject” and the State Subjects were divided into several categories the discussion about whom is beyond the scope of this article. The Notification 1-L/84 dated 20-04-1927 was followed by the Notification No. 13/L dated 27-06-1932 under the Command of the Sovereign with a view to determine the status of the State Subjects in a foreign country & to inform the Governments of the foreign countries about the position of their (foreign) nations in the State of JK. So, to adumbrate the facts, the Notifications of 1927 & 1932 granted to the State Subjects exclusive rights of (1) scholarships, (2) land ownerships and (3) recruitment to State Services. (State of J & K v. Dr. Susheela Sawhney, AIR 2003 JK 83 = (1) JKJ 35). The Notifications of 1927 & 1932 were protected under the earlier JK Constitution of 1939 which were further protected & preserved under the JK Constitution of 1956. (Sections 5-A to 5-F).
If we move further backward towards the end of 19th Century Kashmir, we will amazingly notice that a deep concern was also expressed by the Principal Settlement Officer of the State of JK in 1887 against possible exploitation of land rights of Kashmiris by others if statutory protection was not granted to those rights of the Kashmiris by the Monarchs of that day. (The valley of Kashmir, (2014) Sir W P Lawrence, pages 430-432).
The discussion so far brings us to conclude that afore-mentioned special rights and privileges of the people of JK with respect to their (1) immovable properties, (2) government jobs and (3) scholarships are firmly grounded in the political history of JK.
Partition, Accession, Constitution & Delhi Agreement:
India got freedom on 15th August, 1947 immediately on cessation of British paramountcy under the Independence Act, 1947 wherein 600 odd States of un-partitioned-India were left free to choose between either of the two Dominions of India or Pakistan created thereunder. Almost all States [of Indian Union] decided to accede to Dominion of India except the State of J& K. The Ruler of J & K, MHS, took time to decide either way till “special circumstances” that had already started showing signs of coming, ultimately came when on 26-10-1947 the MHS entered into an Instrument of Accession/IOA with India. The IOA provided for “conditional accession” of JK with India on three subjects only, namely, Defense, Foreign Affairs and Communication. Dominion of Pakistan did not accept the said “conditional accession” and ultimately the matter was taken to UN by India itself in January 1948 for a final verdict. UN GA passed several resolutions upholding right of self-determination of JK people, as a concomitant of democracy, under UN auspices in JK.
In the meantime, during a period of almost three years, from 9th December 1946 to 26th November 1949, the Constituent Assembly of India was busy in drafting, deliberating and discussing about the provisions of the future Constitution of Republic of India. It was finally adopted on 26th November 1949 and came into effective from 26th January 1950. The Constitution under Article 394 extended to whole of India. It is manifestly clear that it did not by its own force apply to JK in the same way as it applied to rest of India. It was extended to JK by virtue of two provisions only viz Article 370 and Article 1. Article 370 incorporated three items of IOA empowering Parliament to legislate on them only as far as JK was concerned. Regarding the other matters and provisions of the Constitution, under Article 370 (1) (d), it was /is laid down that only President could extend them (other provisions of the Constitution and Parliamentary Laws on such matters in Union & Concurrent lists on which Parliament has power to make laws), with such exceptions and modifications as he may specify by order, to the State of JK. However, this special process of applying Constitution to the State of JK is required under Article 370 to be completed only by an order passed/to be by the President in concurrence or consultation with the State Government.
As noticed above, to confront challenges in UN GA questioning legality of India’s claim on JK, the Constitution (Application to J & K) Order of 1950, which was concomitant with the Constitution itself, tried to formalise and legalise the relationship between the State & UOI. But it was not found enough for a “constitutional democracy” like India to justify its claim on JK on Articles 370, 1 & Constitution (Application to J & K) Order, 1950. So, discussion for further strengthening bonds of relationship, bringing JK constitutionally closer to India continued between Leaderships of India and JK which culminated in what is popularly called Delhi Agreement of 1952 signed between Sheikh Abdullah & JL Nehru. In other words, one can say that Delhi Agreement, http://jklaw.nic.in/delhi1952agreemnet.pdf, despite criticism it bore from Hindu RSS hardliners of JK & India, provided the much needed remedy to India to assuage its immediate trouble at international level by crawling along the constitutional path to reach closer and closer to JK. Point Two of the Delhi Agreement is pertinent in the context of the discussion and it is writ large from this point that citizens of JK were not regarded as citizens of India and so, it was agreed that Article 5 of the Constitution of India would be extended to JK to include the people who have a domicile in JK to regard them as citizens of India. Point Two of the Agreement further empowered the State Legislature to make laws of its choice defining “State Subjects” and confer on them the privileges and rights which they have had been enjoying already by virtue of Orders & Notifications of 1927 & 1932 cited above.
The Delhi Agreement was a solemn pledge made between JK & India and any backtracking on it by Sheikh Abdullah was to be treated not in India’s “national interests” (refer letter dated 10-06-1953 of KN Katjoo addressed to Nehru) and India through its Leadership had equally bound itself to incorporate its terms in its Constitution and wanted JK to do the same through its future Constituent Assembly. (Refer reply of Nehru to Dr. Karan Singh’s two letters dated 03 & 07 August 1952). The question arises if backtracking by JK, Sheikh Abdullah, from the points of the Delhi Agreement was unacceptable to India, then, by the same logic reneging by India after 70 years on any of those terms including Point Two is equally unacceptable to people and all leaders of JK except few Hindu RSS ideologues who are a fringe minority.
Translating Delhi Agreement into action:
In the backdrop of Delhi Agreement of 1952 followed by the recommendations dated 6th February 1954 of the JK Constituent Assembly‘s Advisory Committee on Fundamental Rights and Citizenship and Nehru’s Statement to the Lok Sabha about Delhi Agreement https://thelogicalindian.com/awareness/article-35a-jammu-kashmir/
, the President of India, in exercise of his powers conferred upon him by Article 370 (1) with concurrence of the government of JK, passed the Constitution (Application to Jammu & Kashmir) Order, 1954. The said Presidential Order of 1954, thus, implemented the Delhi Agreement whereby, among many other things, Indian citizenship was extended to the residents of JK and simultaneously Article 35-A was inserted into the Indian Constitution that gives carte blanche to the State Legislature to define who are the “State Subjects” & confer on the “State Subjects” special rights and privileges in public sector/government jobs, acquisition of immovable property in J&K, settlements, scholarships and other public aid and welfare. Article 35-A is reproduced below:
“ 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”.
Note: Most of the books of Indian authors on Constitution of India aren’t showing Article 35-A as a part thereof. Why? They know better?
It may be mentioned that the Constituent Assembly of the State of JK subsequently following the Delhi Agreement & Article 35-A made provisions relating to “permanent resident” by inserting sections 5-A to 5-F in the JK Constitution of 1956.
Word of caution:
To iterate, geo-political conditions of JK were very much in the knowledge of the lawgivers. Taking a due notice of the same, the lawgivers did not apply the Constitution to JK simultaneously with other States. To circumvent or surmount those hard geo-political facts, a mechanism was devised in the shape of Article 370 to link JK “constitutionally” with India. This provision was based on a pact between the Indian State & JK, the governors and the governed, whereby the governed (general masses of JK) had agreed to be governed by the governors but strictly on the condition that the age old natural rights of the governed shall be protected and preserved at all costs, which the people of JK shall never be deprived of. This was and is a solemn pledge made by Indian State with the people of JK. This is a universally accepted political theory. “The Presidential Order of 1954”, which is an offshoot of Article 370 “implies both further strengthening of India’s hold on Kashmir and recognition of a privileged position of Kashmir within the Indian Republic”.(Danger in Kashmir (1954) , Josef Korbel, pages 246-247, emphasis added). If India de-recognises or snatches the “privileged position of Kashmir”, at least in its remnant of Article 35-A, its hold on Kashmir will get loosened further as latest Mehbooba Mufti has publically declared that if Article 35-A is abrogated, there will be nobody to hold tricolor in Kashmir. Ram Jethamalini, noted Supreme Court lawyer, has indirectly conveyed a similar word of caution to BJP-RSS think tank about mis-adventure of supporting “indirectly” the people (their proxy petitioners before the SC) who are hell bent on abrogation of Article 35-A to change demography of JK from majority-Muslim-State to its minority State.
Threat to Article 35-A:
For 70 years, Article 370 has served the interests of India beyond its expectations, internally as well as externally , keeping in view geo-political challenges it faces and faced relating to its holding and annexing the State of JK with it. It was this Article that rescued India by facilitating a “legal” relationship with State of JK. It is this Article that enabled extension of Union Laws & provisions of the Indian Constitution to the State, either fully or partially, with such modifications and exceptions as permitted by the Presidential Orders passed under it. The Presidential Order of 1954 is that Mega PO that extended a number of Central Laws & provisions of the Indian Constitution to the State besides adding Article 35-A to it. Article 35-A has not been incorporated to the Constitution in isolation. It is a part of plethora of items and laws mentioned in the PO of 1954 that has provided a constitutional link to India to have and hold JK. There is no questioning about the other items brought by PO of 1954 & a number of other Presidential Orders that extended and applied almost entire Constitution of India to JK. Only festering sore with communal-minded people is Article 35-A. The fascist intention concealed behind a façade of a legal right to challenge this original Constitutional Provision in “national interest” is manifest. RSS backed groups like We the Citizens, the Jammu & Kashmir Study Centre & others have challenged the constitutionality of Article 35-A in the Supreme Court where it is pending arguments and adjudication .
Main ideas of challenge:
Firstly, it is argued that the special status, certain rights and privileges, enjoyed only by the residents of the State under these Constitutional provisions has given rise to alienation and separatist tendency to the people of Jammu and Kashmir. This argument is absurd for several reasons: (1) If these provisions were not inserted in Constitution, India would have lost JK long back. These provisions India enabled it to procrastinate & ultimately deny promised right of self determination to the people of JK. (2) These provisions furnished a constitutional link between India & JK. These provisions are aboriginal in the Constitution. (3) Does it mean that by incorporating these provisions, the law givers and founding fathers of Indian nation afforded alienation and separatist identity to the people of JK? Are the petitioners wiser than them? These provisions helped Indian in assimilating & integrating JK with it. Without these provisions, what was relation between JK & India, except Military Control? (4) If the petitioners refer to Separatist Organisations in JK, then, they forget for 23 years Sheikh Abdullah too had cherished such inclinations. And, Separatist Parties have been there in JK right from 1947. It is nothing new keeping in mind political history of JK. (5) Since local betrayals, backtracking by Indian leaders on their promises & Indian State’s harsh treatment meted out to JK people especially Muslims have already alienated them from Indian mainstream, any more attempt on elimination of Article 35-A would only strengthen elements of alienation and separation from India in JK. It is historically & factually correct that huge chunk of population of JK already feel backstabbed & alienated which is writ large from innumerable gatherings & rallies of JK people protesting against Indian atrocities.
Secondly, it is argued that this provision does not allow people from outside JK to work, settle or own property in the State, and that right of employment in government departments & scholarships, different forms of aid & welfare are confined to State Subjects. This argument is again missing the point that the special rights and privileges conferred on JK State Subjects by Article 35-A are nothing new. These rights and privileges were recognized since earliest times of 1900 in JK & this provision based on Delhi Agreement of 1952 simply recognises an already existing position of law. Without recognising & affording these certain rights and privileges to JK, no democratic & constitutional relationship between the State & India would have ever come into being & operated till now.
Legal points & counter points & rules of interpretation:
Without referring to some “subsidiary issues” raised in these writ petitions since they could be properly handled by State Legislature by making changes, if possible, in the State Subject Laws to address to the concerns of women ( if State Subjects) marrying non-State Subjects & the property rights of their descendants, our main focus is on the salvo launched by the petitioners against Article 35-A mainly on the ground of Article 368. It contends that the President did not follow procedure established under Article 368 by presenting Article 35-A for approval before Parliament. It argues that Presidential Order of 1954 ‘added’ a new “Article 35-A” to the Constitution while addition or deletion of an Article amounted to an amendment to the Constitution which could be done only by Parliament and Article 35-A was brought about by the “executive order” when actually the right of amendment of the Constitution lies with the legislative organ of the State. Therefore, Article is ultra vires the basic structure of the Constitution since it violates the Constitutional procedures established by law.
First & foremost, this argument at its face ignores basic facts. It is true that amendment to the Constitution of India could be done only by Parliament under Article 368. But it is equally truethat Proviso added to Article 368 (2) by the Constitution (Application to J & K), Order, 1954, makes operation of Article 368 subject to Article 370 (1) and that Article 370 begins with non obstante clause “notwithstanding anything in this Constitution………..” which means that Article 370 would operate & has operated despite that there being no such provision anywhere in the Constitution allowing the President, inter alia, under sub article (1) clause (d) to apply constitutional provisions to the State with “such exceptions and modifications as the President may by order specify…..”. The object behind enacting Article 370 was to recognize the special position of the State of JK and to provide for that special position by giving power to the President to apply the provisions of the Constitution to JK with such exceptions and modifications as the President might by order specify. While interpreting the word “modification” used in article 370, the Seven Judges Constitution Bench of the SC held that “……., it means that he (President) may vary (i.e., amend) the provisions the Constitution in its application to the State of Jammu and Kashmir. We are, therefore, of opinion that in the context of the Constitution, we must give the widest effect to the meaning of the word “modification” used in Article 370 (1) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Article 370(1) only to such modifications as do not make any “radical transformation…. If, therefore, the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir, it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. …..” (Puranlal Lakhanpal v. President of India, AIR 1961 SC 1519= (1962) 1 SCR 688 (07 judges) wherein challenge to PO of 1954 was made on certain other grounds; followed in Sampat Prakash v. State of J&K, AIR 1970 SC 1118; Ashok Kumar v. State of J&K, 2015, emphasis supplied ).
In the light of the said ruling of the SC, there is hardly any doubt left to disagree that the President has had the widest powers under Article 370, of course, with concurrence of the State Government, to pass PO of 1954 that , inter alia, has incorporated Article 35-A in the Constitution.
It has to be noted that Article 370, under which Presidential Orders have been passed, is an original provision of the Constitution, as such it cannot be repugnant to other provisions of the Constitution of India in view of cardinal rule of interpretation of the statutes, that is, “In Civile Est Nisi Tota Lege Perspecta Una Aliqua Particula Ejus Proposita Judicare Vel Respondere’ (construction is to be made of all parts (of a statute) together, and not of one part only by itself). Even if it is presumed to be an exception, there are exceptions to every rule. Under the Constitution, only States & not Union Territories have Legislature, as yet, UT of Pondicherry has a Legislature. This is an exception to the general rule.
On the basis of expediency and political history, there are special provisions contained under Article 371 (A) to 371 (I) with respect to the states mentioned therein. Likewise, Article 370 is also a special provision with respect to JK.
Furthermore, the rule “In Civile Est Nisi Tota Lege Perspecta Una Aliqua Particula Ejus Proposita Judicare Vel Respondere’ cannot be partly applied to PO of 1954 to scrap down Article 35-A [only] that it added to the Constitution while allowing all other amends , modifications & exceptions, it made to it by extending many other Constitutional provisions to the State. If the PO of 1954 is selectively targeted to achieve the “hidden agenda” of the petitioners, then, it must throw all other POs open to challenge because they emanate from the same source of Article 370?
Secondly, it may be mentioned that in India, it is the Constitution that is supreme & not the Parliament. Parliamentary sovereignty is subordinate to the Constitution and aboriginal provisions like Article 370 of which Article 35-A is an offshoot cannot be abrogated. Moreover, their genesis lies in the solemn pledges of Indian Leaders with Ruler & Leaders of JK.
Thirdly, the Constitution of India is supreme law of India. As it is creation of the Constituent Assembly of India and not that of Parliament, it cannot be overridden by Parliament in any manner whatever except that it can be amended from time to time to keep pace with changing circumstances. Nevertheless, what constitutes pith and substance or basic structure of the constitution that cannot be changed by any amendment to it? Initially, basic structure doctrine was confined to fundamental rights only but at present this doctrine encompasses within its grip many other ideas and principles that lay deep in the Constitutional provisions. Article 35-A is a part of that basic structure of the Constitution, acknowledging the trust that people of JK reposed in Indian State at the time of its accession under extreme conditions & so, it cannot be abrogated. It is grounded in the commitment and pledge made by India to JK People under the Delhi Agreement of 1952 signed between SMA and Nehru. The claim of any particular feature of the Constitution to be a “basic” feature would be determined by the Court in each case that comes before it. (Indira Nehru Gandhi v. Raj Naraian ; the Minerva Mills case).
Fourthly, the doctrine of textualism cannot be invoked to judge the validity of this provision by showing mere adherence to its text without considering (1) the “special circumstances” that led to its incorporation in the Constitution and (2) the objective that it achieved for [Dominion of] India would not be a valid method of interpretation as the theory of textualism is no more treated good rule of interpretation.
Fifthly, the US Supreme Court has evolved and accepted the rule of Originalism while interpreting any provision of the Constitution which, inter alia, mandates the Court to interpret the challenged provision consistent with its original purpose. The Interpreting Court cannot, therefore, lose sight of the purpose behind incorporation of a provision in the Constitution.
Sixthly, the Parliament has no power to legislate, inter alia, about the subjects of the land & other immovable properties of the State which has its own piece of legislation, the Transfer of Property Act, 1882, that deals with these subjects. No Presidential Order passed under Article 370 has till date extended and applied the Parliament’s power to legislate on “land and immovable properties” under Entries 6 & 11-A of the Concurrent List to the State of J & K. The power to legislate on these subjects is vested in the State Legislature itself. (Bhupinder Singh Sodhi v. Union of India, (2015) 1 SLJ 105). Although the JK High Court decision in Bhupinder Singh Sodhi case stands overruled by the SC in State Bank of India v. Santosh Kumar Gupta, decided on 16-12-2016, making the SARFAESI Act applicable to the State, as yet, the SC has upheld the property rights of the State Subjects in these words: “The State List continues to be omitted altogether, and from 1963 onwards, the Concurrent List applies to the State of Jammu & Kashmir with a number of Entries being omitted. What is of importance for the decision of this case is that Entry 6 dealing with the transfer of property and Entry 11A of the Concurrent List do not apply to the State of Jammu & Kashmir? Entry 6 does not apply because it has not been extended to the State, and Entry 11A does not apply because the 42nd Amendment to the Constitution of India, which introduced Entry 11A into the Concurrent List, is itself not applicable. (Emphasis added). The SC continued to hold thatRule 8(5) proviso of the Security Interest (Enforcement) Rules, 2002 makes it amply clear that section 140 of the Transfer of Property Act of Jammu & Kashmir will be respected in auction sales that take place within the State. (Ibid).
Moreover, the Central TP Act does not apply to the State. Now, assuming, Article 35-A is removed from the Constitution, then, it means that the State’s TP Act, 1882 has also to go and be replaced by the Central TP act, 1882. But is it possible to apply the Central TP Law directly to the State by bypassing the procedure under Article 370. Had it been so, then, the present ruling party of India did not need consent of the State Government to extend the Central GST Law to the State by passing on the same day of enactment (8th July, 2017) yet another Presidential Order under Article 370 (1). The stand of the State Government & all parties of JK except BJP on Article 35-A is public and clear that no change in this field of “special position” of JK shall be accepted.
More case laws:
State subjects victims of violence being paid more compensation than non-State subjects is not violative of article 14 of the Constitution. It is allowed under the state Constitution & Article 35-A of Indian constitution. (Sudesh Dogra v. Union of India, (2014) 6 SCC 486).
A perusal of the Article would show that such laws which, defined the classes of persons who are, or shall be, permanent residents of the State of Jammu & Kashmir, and the laws conferring upon such residents the benefits and restrictions as specified therein are saved from being challenged and cannot be declared void. (Kartar Goods Carriers v. State. (1990) Supreme (J&K) 61).
Under the Article 35-A, which begins with a non obstante clause all the existing law, which are in force in this state are protected and any enactment made by the state legislature relating to permanent residents, their status, rights and privileges or relating to their employment, acquisition of immovable property, settlement in the state or grant of scholarships, are also protected. That being the position under the constitution itself, the submissions challenging their validity have to be rejected. This conclusion is further re-enforced by Article 367 of the constitution of India in its application to this State. (State of J&K v. Susheela Sawhney, AIR 2003 J & K 83).
Each and every kind of discrimination is not in violation of the constitutional concept of equality and does not necessarily undermine the unity of India. The validity of any discrimination has to be tested on the touchstone of Article 14 of the Constitution. Appropriate classification may in very many cases from the very core of equality and promote unity in the true sense amidst diversity. (Dr. Pradeep Jain v. Union of India, AIR 1984 SC 1420).