The Supreme Court on 06/08/2018 adjourned the hearing on petitions challenging the validity of Article 35A. A bench headed by the then Chief Justice Dipak Misra observed that the apex court will look at whether Article 35A, which gives special status to the state and people of Jammu & Kashmir, violates the “basic structure” of the constitution. The basic structure here refers to fundamental rights, including the right to equality, non-discrimination, liberty, life and dignity which are included in the constitution.
Both the Centre and the Jammu and Kashmir administration however back then sought the adjournment on the ground that preparations for local body polls were underway. The Centre also said the interlocutor has been appointed and the talks are going on.
Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.
Note: Those who emigrated from the state to Pakistan during Partition are considered state subjects for two generations, but those who migrated from other than POK and settled in J&K, post Partition, are ineligible.
Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. The Controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement between Pt. Nehru and the then Prime Minister (Sadr-i-Riyasat) of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.
After Jammu and Kashmir’s accession, Sheikh Abdullah (Sadr-i-Riyasat) negotiated Jammu and Kashmir’s political relationship with New Delhi, which led to the inclusion of Article 370 in the Constitution.
The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.
So Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.
The parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution.
Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution. So did the President act outside his jurisdiction? Is Article 35A void because the Nehru government did not place it before Parliament for discussion?
A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. the President of India discusses the President’s powers under Article 370 to ‘modify’ the Constitution. Though the court observes that the President may modify an existing provision in the Constitution under Article 370, the judgment is silent as to whether the President can, without the Parliament’s knowledge, introduce a new Article. This question remains open.
A writ petition filed by NGO “We the Citizens” challenges the validity of both Article 35A and Article 370. It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of Jammu and Kashmir was never accorded any special status in the Constitution. Article 370 was only a ‘temporary provision’ to help bring normality in Jammu and Kashmir and strengthen democracy in that State. The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.
The petition said Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.
A second petition filed by Jammu and Kashmir native Charu Wali Khanna has challenged Article 35A for protecting certain provisions of the Jammu and Kashmir Constitution, which restrict the basic right to property if a native woman marries a man not holding a permanent resident certificate. “Her children are denied a permanent resident certificate, thereby considering them illegitimate”
Responding to their plea, the Supreme Court sent notices to the Centre and state in July 2017. Advocate General K Venugopal told the bench of the then Chief Justice of India (CJI) J S Khehar and Justice D Y Chandrachud that the petition against Article 35A raised “very sensitive” questions that required a “larger debate”.
On May 14 this year, the SC deferred hearing on the petitions challenging Article 35A. The Centre told the bench that the matter is very sensitive and since the interlocutor is making efforts for a solution, the court should not pass any interim order at present as it would be counterproductive.
Representing the J&K government, advocate Rakesh Dwivedi said SC has already settled the issue by ruling that Article 370 of the Constitution has already attained permanent status. “In any event as the issue required interpretation of various constitutional provisions, let there be no interim order,” Dwivedi appealed to the bench.
Senior advocate Ranjit Kumar, counsel to a petitioner, countered and said: “It is a strange situation in J&K as persons from Pakistan can come and settle in the state under a law but those who have been staying for generations cannot even get a government job.”
Kashmiri political parties have warned of closing ranks if there is any attempt to scrap or dilute 35A. This issue has united political parties and local business communities alike. One leader of the Kashmir Economic Alliance was quoted as saying traders will fight tooth and nail to prevent the scraping of 35A.
The reality is that the Valley-based parties are afraid of losing their support base, because for years they have drilled into the population the thought of demographic change, hence they cannot back down now, though evidence points to the opposite. In addition, there is a latent fear that other parties would soon become a force in the Valley, eroding their power.
If the state is required to take a legal stand on the issue, then it should consult representatives of Jammu and Ladakh also. They are unwilling because Jammu is dominated by the BJP, whose views are clear and Ladakh by the Congress. Hence, in case political consensus is not forthcoming, then the next democratic step would be to conduct a referendum across the state. Both PDP and NC are hesitant against this step, knowing they would lose.
Thus, they are willing to support violent protests in the Valley, as it is the only part of the state where locals have been brainwashed. In case the Centre does seek to bring about a change, it needs to engage the population, commence debate on the advantages and disadvantages of the Article in vernacular media and college forums, creating awareness to override the misconstrued campaign of the Valley-based political parties.
It should not let only one voice, opposing the Article, flow from the Valley. Saner thoughts must prevail and complete state views must be considered, which are strongly for its abrogation.
The Supreme Court has said on numerous occasions that the fundamental rights are the most sacrosanct part of our Constitution and can’t be violated under any circumstances. Fundamental rights are also part of the basic structure of the Indian Constitution, which cannot be destroyed in any way.
The Union government has rightly parted ways with the state government in front of the Supreme Court. The Centre expressed its reservations in responding to the NGO’s petition before the apex court. This means that if Article 35A is struck down, there will be more legal parity between a citizen of India in Jammu and Kashmir and a citizen of India in any other state. Even from a political point, the existence of such special legal provisions for Jammu and Kashmir is indirectly an acknowledgment in front of the international community that the state is a disputed territory and therefore, it has a special status within the country.