Curious Case of Article 35-A

We need to defend our case strongly and logically

Shahnawaz Ellahi
Srinagar, Publish Date: Aug 9 2018 11:32PM | Updated Date: Aug 9 2018 11:32PM
Curious Case of Article 35-AFile Photo

There is a new threat looming all over the state. The constitutional validity of the covenant Article 35-A has been put into question by a little known NGO called We The Citizens and a think tank called Kashmir Study Centre who have challenged the “provision” in the Apex Court, which it argues was enacted without any debate in the parliament. It has caused fear and resentment yet again and Kashmir seems to be all set for the next bigger uprising which according to some senior state politicians would be difficult even for the centre to contain.

Peeping into the history of Article 35-A, we find its emergence in the 1927 Hereditary State Subject Order passed by Maharaja after the pandit community launched the “Kashmir for the Kashmiri” movement. This order granted to the “state subjects”, the right to government office and the right to land use and ownership. After the accession of Jammu and Kashmir to the Indian Union, the Maharaja ceded the hitherto sovereign subjects of Defence, External Affairs and Communication to the Government of India formalising it by means of Article 370 of the Constitution Of India. This was followed by the Delhi Agreement in 1952 whereby the Indian government agreed that the state of J&K would be empowered to legislate over the rights and privileges of the “state subjects” who would now be called as “permanent residents”.

Following the adoption of the provisions of the Delhi Agreement by the Constituent Assembly of J&K, the President of India issued “The Constitution (Application to Jammu And Kashmir) Order”, 1954 which inserted the Article 35-A into the Indian constitution enabling the state legislature to ‘safeguard the laws’ defining the privileges of the permanent residents. 

Contrary to the belief that Article 35-A ‘directly’ gave special privileges to the “permanent residents”, it actually safeguarded the laws that had been and were promised to remain the sovereign functions of the state of Jammu And Kashmir. In other words, it was the state that had extended special rights to the Government of India by ceding some of its sovereign functions. Also if we look into the following provisions of the Presidential Order of 1954, we can see that the issue is no more than a political controversy and the honourable Supreme Court will take a fair and square decision on it:-

1) Indian citizenship was extended to the “permanent residents” of Jammu and Kashmir.

3) The jurisdiction of the Supreme Court of India was extended to the state.

Therefore if the “Presidential order” is declared null and void by the Supreme Court, then the “permanent residents” will no more be citizens of India and the act will also raise questions on the jurisdiction of the Supreme Court in the state.

Further, the Supreme Court will also have to annul all the Presidential Orders which followed the order of 1954 in the form of amendments to the original Order and which have been accused of being the prime instrument to erode the sacrosanct Article 370. These orders are nothing but the constitutional links between Indian Union and the State and abrogation of these orders should theoretically, restore the position of the state to the status preceding the accession to India. 

The Supreme Court on 6th August said,” We will only have to see whether Article 35-A goes against the basic structure of Constitution”. The doctrine of basic structure of the constitution is an innovation by the Supreme Court which took place during the famous case of Kesavananda Bharati 1973 where it ruled that the power of parliament to amend the constitution under Article 368 does not enable it to alter the basic structure of the constitution. Again two perspectives emerge:

a) The doctrine clearly states that it can be applied to the amendments made by the parliament under Article 368 which is not the case of Article 35-A as it was neither amended by parliament nor inserted by taking recourse to Article 368.

b) The Supreme Court also made it clear that the doctrine would apply only to the amendment enacted after April 24 1973 (i.e. the date of the judgement in the Kesvananda Bharti case) therefore saving the Article 35-A (which was enacted much earlier) from judicial review under this doctrine.

Everything said and done, the logical and simple explanation for the Presidential Order of 1954 not coming through the way of deliberation in the Parliament is that the sovereign state of Jammu And Kashmir acceded to India in October 1947 through the execution of the “Instrument of Accession” which allowed Indian Parliament to make laws for the state of J&K only in respect of Defence, Communication and External Affairs, thus limiting its powers with respect to other subjects of the State. Matter of fact is that India recognises the separate constitution of the state of Jammu and Kashmir and so even if Article 35-A is repealed, it does not take away the power of the state to define its “permanent residents” or to give them rights which are not extended to “non-residents”.

 

As for the women alleging that their rights in property has been denied after they married non-residents, it can be said that it does not amount to total denial of property as the assets in the jurisdiction of the state can be liquidated and transferred to the daughter. However their concern is genuine and the state government needs to take appropriate measure through the course of law to redress the grievances without getting into the issue of Article 35-A. As of now, strong arguments should be prepared by the state in its defence and people should have full faith in the learned and competent council representing our state in the Apex Court on 27th of August.

 

 

(Author can be reached at ishahnawazassad@gmail.com)

 

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