'If Article 35A goes, all Presidential Orders from 1950-75 will go'

'If Article 35A goes, all Presidential Orders from 1950-75 will go'

It is a Constitutional provision applied by President of India to the State of Jammu and Kashmir and has no application to any other State.

Noted Senior Advocate Zaffar Shah explains to D A Rashid the importance of Article 35A and the implications of a successful legal challenge to it in view of the petition filed by an RSS-linked Think Tank Kashmir Study Centre in Supreme Court

What is Article 35A?

It is a Constitutional provision applied by President of India to the State of Jammu and Kashmir and has no application to any other State.

Before 1947, the State of Jammu & Kashmir was headed by a ruler. He was competent to make laws for his subjects. These laws included laws relating to employment, acquisition of property, settlement in the state etc. All other persons who were not residents of the State or subjects of the ruler were treated as foreigners. The ruler defined State Subjects by law and also conferred rights and privileges on his subjects.

After 1947, when the Constitution of India was being formulated, it was made applicable to all the States which had agreed to be part of Union and had merged with it. The Constitution granted and recognised rights of the people of federating States and made them uniformly applicable to all citizens.

 The State of Jammu and Kashmir did not agree that the Constitution of India should be made applicable to it in the same manner as it was made applicable to other States. The Government of India, acknowledging limited nature of accession, Resolutions of the United Nations and the dispute between India and Pakistan as regards territory and accession of the State, incorporated a Special Article in the Constitution known as Article 370. The mechanism provided is that no provision of the Constitution of India would apply to the State of J&K, unless the President of India notifies its application to the State and while doing so, the President is empowered to apply the provision with such “ exceptions” and “modifications” as the President may notify.  

Therefore, from time to time, the President of India has notified Application of the various provisions of the Constitution of India to the State and in their Application, has either not applied particular provision to the State or has applied Constitutional provision with modifications. New Constitutional provisions have been made for the State which do not find mention in Constitution of India. Article 35A is one of such Constitutional provisions. 

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. The power of the President in the Application of Constitutional provisions with or without “exceptions” and “modifications” 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. The only requirement is that it has to be done by the President with “concurrence” of the Government of Jammu and Kashmir.

It is in line with this mechanism that in 1954, the President made an order called Constitution (Application to Jammu and Kashmir) Order with effect from May 14,1954 and applied Article 35A to the State as a new provision in the Constitution. 

This Article provides that a person will be treated as a “Permanent Resident of J&K” only in accordance with the law which was already in force in the State before May 14, 1954. In other words, a person who does not qualify as a Permanent Resident of the State under law as was applicable before May 14, 1954 cannot now become Permanent Resident of the State. The said law is also protected by the Constitution of Jammu and Kashmir.

This Article further provides that the Permanent Residents will continue to enjoy Special Rights and Privileges in the matter of (1) Employment under the State (2) Acquisition of immovable property in the State (3) Settlement in the State (4) Scholarship and aid as the State Government may provide. Any law which gives these Special Rights and Privileges to the Permanent Residents of the State cannot be declared null and void by any Court on any ground.

In view of this Constitutional position all the rights and privileges available to Permanent Residents of the State of J&K are protected and immune from challenge.

Obviously, these Special Rights are not available to the Non-Permanent Residents.

To deprive people of the State of J&K of their Special Rights and Privileges, once again challenge has been made before Apex Court, questioning protection and grant of Special Rights and Privileges to the Permanent Residents, despite the fact that power of President to make such a provision in the Constitution stands already decided and settled, which has been the law in force for last several decades.

The Writ Petition before Supreme Court of India has been filed by persons whose political objective has always been unsupportable and unacceptable. They have failed at the hustings to muster support for one Constitution, one President and one Flag. They are therefore, once again trying their luck through Judicial process.

There is however, a larger context to the Political cum Constitutional issue involved in the proceedings.

Few common sense but inquisitive questions arise. (1) Why was Constitution of India not made applicable to J&K in the same manner as it was applied to other States (2) Why was Article 370 incorporated in the Constitution (3) Why J&K has its own Constitution, its own flag, its own High Court, prescribes oath for the Honourable Judges, and the Governor (4) Why do the Permanent Residents of the State enjoy Special Rights and Privileges?

All these questions and many others can be answered only in the context of Political cum Constitutional developments, internal and external, as have taken place after 1947, when India and Pakistan emerged as two Independent Sovereign Countries.

There are several historical facts, which need to be recognized.  With the lapse of British paramountcy, State of Jammu and Kashmir acquired status as an Independent Sovereign State. It retained said status till October 26th, 1947, when the then ruler executed Instrument of Accession with India. Many historians and jurists have questioned genuineness and legality of this Accession. Whatever be one’s views on this issue, there is no denial of the fact that the Accession with India was limited in nature and scope. The Accession allowed Indian Parliament to make laws for the State of J&K only in respect of Defence, Communications and Foreign Affairs. “Instrument of Accession” between India and the State of Jammu and Kashmir is between two States an act of state, subject, of course, to its genuineness and validity. According to the response of the Governor General of India to the Instrument of Accession dated October 27th, 1947, it is subject to acceptability by the people of the State by way of referendum. It protects, otherwise, sovereignty of the State (some call it semi-sovereignty) and safeguards all other powers. Having regard to the Instrument of Accession, the Constitution of India, therefore, could not be made applicable to the State. Another important event which also shaped Constitutional relationship, were United Nations Resolutions and the commitment of India to hold plebiscite in the State. The Government of Pakistan did not accept Instrument of Accession and in the battle immediately after October 26th 1947, part of the State could not remain under the control of the Administration as it was during Ruler’s time. 

 India referred the situation to the United Nations for its intervention. Several resolutions were passed by the UN providing ways and means of settling the dispute. The direct impact of the UN resolution and limited nature of the controversial Accession resulted in (A) Non application of the provisions of Constitution of India in their entirety to J&K (B) Providing a mechanism for application of the provisions of the Constitution of India to the State till the issue was resolved and (C) Making a separate Constitution for J&K and its Permanent Residents.

Apart from limited nature of Accession and UN resolutions, the Constitutional arrangement was worked out consequent to the meetings and discussions among political leaders. Both external and internal factors coupled with political scenario in the subcontinent resulted in different kind of Constitutional arrangement between State and the Union.

 When the Constitutional Orders are closely examined, it becomes self evident that these Application Orders are intended to protect and safeguard residuary character of the State, politically, economically, socially, culturally and above all the rights of the people. Under the first Constitutional Application Order of 1950, various entries, on which Parliament could make laws corresponding to matters specified in the Instrument of Accession, were made applicable to the State.

It was followed by a detailed Constitutional Application Order of 1954 when the Constituent Assembly of the State was in the process of making its own Constitution. The then Prime Minister Sheikh Muhammad Abdullah had been already arrested. It is this Constitutional Application Order of 1954 which has been further amended under various Constitutional Application Orders from time to time with the ‘consultation’ and ‘concurrence’ of the State Government.

These Constitutional Application Orders provide  (1) That the area of the State of J&K cannot be increased or diminished by the Parliament without the consent of the State (2) For return of Permanent Residents who migrated to the territory now included in Pakistan and empower legislature of the State to make law for return and resettlement of the migrated Permanent Residents (3) For  Safeguards and protection to the rights and privileges of the Permanent Residents of the State in matters of employment, Acquisition of Immovable Property, Settlement in the State and Right to Scholarship (4) limitation of the State legislature to make laws (5)  That any decision affecting disposition of the State shall be made by Government of India with the consent of the State Government (6) For Acquisition of property for the Union only through State Government  (7) That the proclamation of emergency on the ground of internal disturbance can only be made, if so requested, by the State Government (8) That Amendments carried out in the Constitution of India can apply to the State only in accordance with the mechanism of Article 370 (9) That the Parliament can make laws for the State only to the extent it is empowered.

These are some of the “modifications” and “exceptions” made by Constitutional Application Orders.

All these modifications in the Constitutional Application Orders have been made in view of the special position of the State.

It is unfortunate that Constitutional position of the State, as it was in 1950, has been gradually eroded by the State Governments, who have from time to time, for reasons of political expediency, given consent and concurrence to the Constitutional Application Orders, depriving State legislature from making laws for its own people. There has been gradual but consistent erosion in the Constitutional autonomy of the State and a serious attempt is at work to bring the status of the State at par with other States of India. The Writ Petition filed in the Apex Court is another attempt in this direction. It is entirely for the Permanent Residents of the State  to make every effort at all levels to oppose all such forces who take every opportunity, be it political, social,  legal, economical or cultural to take away from the people of the state what belongs to them.       

How difficult it is to do away with Article 35A? What will happen if the Article goes?

In my view the Petition before the Supreme Court deserves to be dismissed in keeping with the earlier decisions delivered by the Court.  Further, 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. It will also affect various provisions of the Constitution of the State and result in Constitutional crisis. 

What steps the State Government should take to counter the Writ Petition?

The State Government can make effective representation before the Apex Court only if it believes that the State has special position and its people have special rights and privileges which need to be protected. A clear political direction is required and the same can be reflected in answer to the petition. But as coalition government is in power with no commonality on the issues involved, rather both PDP and BJP are politically and ideologically separate entities, effective representation expected by the people of the State may not be as effective as it ought to be because of the different political implications for the two coalition partners. Let us keep our fingers crossed and see which way the cat jumps. Without clear political belief, no effective representation can be made. 

What measures other than the Government’s are required to defend Article 35A?

In order to make their voice heard, people who believe in safeguarding Constitutional autonomy of the State need to join hands and work out a strategy to defeat political objective of writ petitioners. It can include involvement of Constitutional experts, law knowing persons, academicians, public thinkers and other interested individuals, groups and institutions. Effective representation before the Apex Court has to be made. Conferences and Seminars have to be held. Views through print media have to be made known. Leadership has to be urged to defeat malicious designs latent in the Petition.

(First published in September issue of GK magazine Kashmir Ink)