To invoke limited accession, 1952 Delhi agreement, presidential powers, special position in its counter affidavit
In defense of Article 35-A that guarantees special provisions to J&K’s permanent residents, the Government has invoked state’s special position in the Indian Constitution, the 1952-Delhi agreement, constitutional bench judgments of the Supreme Court and powers vested with President, for issuance of the 1954 constitutional order.
The objections spread over 41 pages have been finalized by the Government to counter a writ petition, filed by a New Delhi-based NGO in the Supreme Court, seeking scrapping of the Article 35A. The State’s defense talks about historical background of J&K and the circumstances that “resulted in temporary settlement under Instrument of Accession.”
The counter affidavit has been formulated and settled by State’s Advocate General Jehangir Iqbal in consultation with the Law department, sources said.
State’s Additional Advocate Generals in New Delhi Nerhar Singh and ArifSikander Mir, JK’s standing counsel in Supreme Court, GM Kawoosa, were also part of the team.
“The Chief Minister Mufti Muhammad Sayeed monitored the whole exercise and was keen in preparation of an appropriate response to the writ petition,” said the sources.
Seeking dismissal of the writ petition, the government has highlighted that J&K had not acceded to either India or Pakistan but owing to “tribal invasions the Maharaja signed instrument of accession with certain conditions that were accepted by Governor General of India.”
“The immediate object of the accession, unlike other princely states, therefore was to make possible and legitimize deployment of troops to the state,” reads the draft, referring to the speech of J&K’s Prime Minister to the Constituent Assembly on November 5, 1951.
Though the instrument conceded powers to Union of India to make laws on defense, external affairs and communication in J&K, yet the attending circumstances of the signing of the instrument and its acceptance sufficiently indicate contemporaneously that a constitutional framework was conceived wherein J&K, unlike other states, was to enjoy a special constitutional position, the response reads.
The government has referred to clauses 4 and 7 of the instrument and the communication whereby governor general of India had accepted the accession, making it clear that dominion of India didn’t take J&K’s accession in the manner it treated accessions by other princely states.
“And hence it was made sufficiently clear that state was to stand on a different pedestal and to be given different and distinct status as regards constitutional powers after the accession,” the objections read.
A reference to GopalaswamiAyyangar speech to India’s constituent assembly in October 1949—while explaining the scope of Article 370—is part of the state’s defense.
“You will remember that several of these clauses (of Instrument) provide for concurrence of government of J&K and these related particularly to the matters which are not mentioned in the instrument. It is one of our commitments to people and government of Kashmir that no such addition should be made except with the consent of constituent assembly which may be called in the state for framing its own constitution… They have committed themselves to a position that an opportunity will be given to people of J&K to decide for themselves the nature of their constitution.”
The response also draws attention towards the argument of the then Minister of States Sardar Patel in the constituent assembly.
“In view of the special problems with which the J&K Government is faced, we have made special provisions for the continuance of the state with union of India on the existing basis.”
The existing basis, the response reads, were Instrument of Accession and the special provisions that were embodied in Article 370 (306-A in the draft) of the Constitution of India.
The government response says the constitutional framework worked between India and J&K that reflected in the Article 370 has its roots in para 4 and para 7 of the instrument which didn’t result in merger of J&K with India but created only a “temporary settlement” under which Government of India has powers on three subjects—defense, communication and external affairs—while as State has its own constitution, flag and Prime Minister.
The other facet of the constitutional arrangement agreed upon related to J&K’s special status allowing it to exercise powers on the subjects that in case of other states were within exclusive domain of Union government and restricting powers of the union government to legislate on such subjects by making it subject to consultation or concurrence of J&K government, reads the draft response.
It goes on to add that the President has powers to extend other provisions of constitution or other laws not related to the subjects enumerated in the instrument to the state provided the state gives concurrence to such constitutional provisions or application of laws.
Invoking clause IV of 1952 Delhi Agreement, the response reads that it was agreed between state and government of India that people of J&K would enjoy fundamental rights but owing to “peculiar position” the state was in, the whole chapter of fundamental rights of Indian constitution wasn’t made applicable to the state.
“That subsequent to the Delhi agreement, the constitution (application to Jammu and Kashmir) order 1954 was issued by President under Article 370 (1) (d), superseding earlier order of 1950 and extending application of various provisions of Indian constitution to the state. It also extended part III of Indian constitution–fundamental rights–to J&K with certain modifications and the article 35 was extended to J&K with a modification contained in clause 4 (j) of the presidential order in the form of saving clause namely Article 35A,” reads the government response.
The Article 35A protects the laws conferring on the permanent residents of J&K special rights as regards employment, acquisition of property, settlement in the state and right to scholarships.
“State Government gave its concurrence to the applicability of Part III of the Constitution of India (Fundamental Rights) through presidential order 1954 only after it took into consideration saving clause contained in the said order which includes Article 35-A. In other words constitutional challenge is not maintainable to Article 35-A alone; Part III of the Presidential Order 1954 has to be challenged and it has to be seen whether State Government would have given its concurrence to the applicability of Article 14, 16, 19, 21 of Indian constitution to the State in absence of saving clause of Article 35-A. The Article 35-A is a saving clause and protects laws relating to acquisition of immoveable property in the State, as such can’t be deemed to be void on the ground that it is inconsistent with the rights conferred by Article 14 or Article 19,” the response reads.
The government has referred to the judgment of full bench of Jammu and Kashmir High Court in the case titled Sant Singh v/s. State, emphasizing that President’s power to modify includes the power to enlarge or add to an existing provision while relying upon the judicial pronouncement of Constitutional bench of the Supreme Court in the case titled MithanLal v/s State of Delhi.
Quoting the Supreme Court judgment in the case titled PuranlalLakhanpal v/s President of India and others the government response says that the under lying object of Article 370 is to recognize J&K’s special provision and to provide for that special provision by conferring on the President the power to apply the provisions of the Constitution to the State with such exceptions and modifications as he may by order specify.
The government has also quoted another Supreme Court judgment titled Sampat Prakash v/s State of JK wherein the court talked about the President’s power under Article 370 to issue orders.
The response goes on to mention that President through Constitution Order of 1954 has extended Article 368 in its application to the State with a proviso that an amendment to the Constitution of India made under Article 368 is not applicable to the J&K unless such amendment is applied by order of the President.
“The proviso clearly requires that the powers of the President under Article 370 must be exercised from time to time in order to bring into effect in Jammu and Kashmir amendments made by Parliament in the Constitution of India under Article 368. Thus, Article 368 is not primarily intended for amending the Constitution as applicable in Jammu & Kashmir…,” reads the response. “Article 368 doesn’t curtail President’s power. A proviso has been added to Article 368 in its application to J&K that provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of Article 370.”
As such, the response reads, no amendment of Indian constitution shall extend to J&K unless it is so extended by an Order of the President.
“Hence, though Article 368 has been applied to State of Jammu and Kashmir, that would not curtail power of President under Article 370 to amend any provision of Constitution of India in its application to Jammu and Kashmir,” reads the response.
Responding to the assertion of the petitioner that after insertion of Clause (22) in Article 366 of Constitution of India in 1971, all Instruments of Accession signed between different rulers of the erstwhile Indian States and the Union of India become inoperative and therefore, special treatment to J&K under Article 35-A has seized, the government has termed it “legally misconceived, untenable and meritless”.
In case the argument of the petitioner is accepted, the response reads, the relation of almost all states with the Dominion of India becomes questionable then.
“In view of the factual and legal position, the writ petition being devoid of merit is liable to be dismissed,” the government has said in its response.
The sources said the government would soon take the call on submitting the response before the Supreme Court which yesterday granted time till December 3—as last chance-to the latter to file its response to the petition.