(Abdul Majid Zargar)
In the cacophony of high decibel debate , Indian media presents article 35A as something which bestows various rights, privileges & favors on people of Kashmir. There can be nothing further from truth when it is repeatedly said & fed to Indian public that article 35A of Indian constitution grants property & employment right to people of Kashmir to the exclusion of other Indians. Unfortunately our own media, uses a language at times, which lends credence to this impression.
Let it be made very clear that article 35A of Indian constitution, as such, does not grant or accord any right to people of Kashmir either with regard to ownership of property or to employment in state services etc.. They had such rights even before the India of today came into existence in 1947. Precisely from 1927 onwards, when the Dogra ruler passed state subject law, bestowing such rights on natives albeit at the instance of Kashmiri Pandits & Jammu Dogras, who always feared influx of people from neighboring plains to overwhelm them.
In 1947,When the State entered into a conditional accession with the union of India, a temporary governing mechanism was devised in the shape of Article 370. This article required New-Delhi to consult J&K State for extending laws pertaining to three subjects of defence, foreign affairs & communication(as specified in the instrument of accession) and her concurrence for application of laws on subjects other than the above three. Further, this concurrence would have to be ratified by the constituent assembly of Kashmir, so that the provisions would be reflected in the state’s constitution. This implied that once Kashmir’s constituent assembly framed the state’s constitution and dissolved, there could be no further extension of the Union’s legislative power. This was the intent & purpose behind J&K’s autonomy & special status.
Not satiated with the above limitations, Delhi always wanted more powers a la Dilli mange more.This resulted in further negotiations between New-Delhi & Srinagar culminating in Delhi Agreement of 1952. It is during these negotiations that our representatives raised the question of some sort of protection to our own state subject laws for fear of loosing them in the vast ocean of Indian laws. This is clear from Nehru’s following record of talks which he subsequently reiterated before Parliament in debates as well as replies to questions.
“ On 20th July 1952, I met a Kashmiri delegation comprising Sheikh Saheb, Mirza Afzal Beg, Bakshi Ghulam Mohammed, Girdharilal Dogra and D.P. Dhar. The Kashmir delegation were anxious that the rights and privileges given to ‘State subjects’ (Jammu and Kashmir Notification dated 20th April 1927) should be preserved, subject to such variations as the Constituent Assembly of the State might decide upon. These rights and privileges relate more specially to the acquisition and holding of immovable property, appointment to services, etc.
It was agreed therefore 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 the acquisition of immovable property, appointments to service and like matters. Necessary protection would be afforded by the centre. Till then, the existing State law would apply.’
It is out these negotiations that article 35A took birth as savior of state’s state subject laws. This article only affords a protections and ring-fences our own set of laws. It doesn’t create any new right or privilege upon people of J&K, as is presented to Indian public.
Another view which has cropped up during this debate is that once article 35A is scrapped by Supreme court of India, the constitutional order of 1954 transporting it to state gets vitiated and hence looses its life along with article 35A. Few have gone to the extent of saying that all constitutional orders applied so far on the state will become null & void including the one applying GST on the state, once apex court holds article 35A unconstitutional. I, however, beg to differ with this view.
To buttress my point, one has to look at What precisely is in dispute in SC regarding article 35A? The petitioner simply pleads that the President cannot insert an entirely new article(35A) through an executive order. Their contention is that such an article should have been inserted through amendment in Indian constitution after complying with the elaborate procedure prescribed under article 368 and then applied to J&K. The petitioner has not questioned president’s power to apply any Indian existing constitutional article with or without any modifications & exceptions as is specified in article 370.
Further it is a cardinal principle of law that if an executive order contains some legal and some illegal parts, the court will strike down only the illegal part of it without effecting the legal parts, unless of course, the struck down portion is such as will make the whole order redundant or infructuous . In that case the whole order becomes unworkable or illegal. Hence scrapping article 35A will not effect even other portions of 1954 order not to speak of any other constitutional order.
My point in writing this is only to escape from the complacency which may set in us, if we think that Govt. of India will suffer many other consequences by scrapping article 35A.
(The author is a practicing chartered Accountant.Email: firstname.lastname@example.org)