Article 35A is beyond challenge
Article 371A of the Constitution of India clearly says: "Notwithstanding anything in this Constitution, – (a) no Act of Parliament in respect of – (i) religion or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the legislative Assembly of Nagaland by a resolution so decides." This provision inserted in 1962 explicitly bars the Parliament of India from making any law in respect of "ownership and transfer of land" in Nagaland and also "its resources". If some people single out Kashmir for hostile attention because of Article 370 and 35A of the Constitution of India, it is for reasons not hard to seek.
This is not all. Article 371G on Mizoram says the same thing. It reads: "Notwithstanding anything in this Constitution, – (a) no Act of Parliament in respect of – (i) religious or social practices of the Mizos, (ii) Mizo customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Mizo Customary law, (iv) ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of Mizoram by a resolution so decides." The Constitution of India is studded with special provisions which thus confer "special status" on certain States; of course in very in degrees for historical reasons. For example Assam, (Art. 371B), Manipur (Art. 371C), Andhra Pradesh (Art. 371D), Sikkim (Art. 371F), Arunachal Pradesh (Art. 371H), and Goa (Art. 371I).
Countries of Continental dimensions respect diversity; e.g. Quebec in Canada. Britain has conferred "special status" with substantial autonomy on Scotland and Wales, not to forget Northern Ireland. It is an Island.
In India the lust for uniformity possesses communal-minded majoritarians. They look askance at Muslim Personal Law and they adopt double standards always.; Article 371A did not satisfy the Nagas. Read this report in Hindustan Times of 10 August on the Naga accord of 3 August by Sanjib Kr Baruah : "Under the general framework terms fo the Naga peace accord signed on 3 august, the Indian Constitution will have to be suitably amended in the final Naga accord, which may be a reality in less than three months, a top NSCN (Isak-Muivah) leader and a key figure in the ongoing negotiations told HT.
"According to Article 371A of the Indian Constitution, land and resources belongs to Nagas. But when it comes to oil or gas or rivers, the Centre says these are national resources. So 371A conferring special rights to Nagaland is not acceptable. The Constitution has to be suitable amended where there are genuine powers to Nasgas," said VS Atem, emissary to the NSCN (IM) collective leadership.
"In effect, more items will need to be transferred from the Central and Concurrent list of the Constitutional to the state list," said the former Naga Army Chief."
Will that amendment also be challenged as being violative of "the basic structure" of India's Constitution? For that matter, the others on Nagaland and Mizoram too, to mention two. However, while they were all enacted under Art. 368 by Parliament in exercise of its amending power, Article 370 is part of the Constitution of India as it was enacted on 26 November 1949. And Article 35A flows inexorably from it. It is now 51 years old and only sanctifies the Maharaja's Notification of 20 April 1927 which defines State Subjects and their right to hold property. Article 6 of the Constitution of Jammu & Kashmir, enacted on 17 November 1956, puts its seal on that Notification explicitly (vide Clause ). So, did the Delhi Agreement of July 1952 between the Prime Minister of India Jawaharlal Nehru and the Prime Minister of J&K, Sheikh Muhammad Abdullah. Kashmir would never have acceded to Indian, even in its hour of peril, if it knew that decades later communal minded persons would want to wipe out that Notification which Art. 35A sanctifies.
The judgment delivered by Justices Muzaffar Hussain Attar and Ali Mohammad Magrey of the High Court of Jammu & Kashmir on 16 July 2015, is of historic significance, quite apart from its cogent analyses; especially of Articles 370 and 35A. As it happens, the Supreme Court of India is due to hear on 17 August a Petition by "We the Citizens", a Delhi NGO which challenges the validity of Art. 35A. The citizen looks up to the Court to do justice but is free to discuss the legal issues raised by the judgment and the Petition.
The judgment concerned the applicability to J&K of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It sought to regulate securitisation and reconstruction of financial assets and enforcement of security interests.
Section 13 provides for enforcement of security interest by the creditor without the court's intervention. Section 17(A), provides for making of Application to the Court of District Judge in certain cases. This is a special provision made for the borrowers residing in the State of J&K. Similarly Section 18(B) provides for appeal to the High Court in certain cases, which can be filed by a borrower residing in the State of J&K who would be aggrieved by any order made by the Court of District judge.
Section 34 provides that no Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter, which a Debts Recovery Tribunal or Appellate Tribunal is empowered by or under the Act to determine and it further provides that no injunction shall be granted by the Court or any other Authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act.
Section 35 provides that the provision of the Act shall have effect, notwithstanding anything inconsistent therewith in any other law for the time being in force. Section 36 prescribes the period of limitation.
These provisions were held to be not applicable to the State of J&K. The Petitioners had borrowed money from banks and financial institutions and hypothecated their properties in their favour. Served with notices for payment, they challenged the applicability of the Act to the State. The challenge was upheld in a judgment notable for the thoroughness of its recall of the State's Constitutional history, from the time of the Maharaja, and its citation of rulings of the Supreme Court on Art. 370. Crucially, the Petitioners argued S. 13 had the potential of transferring interests in immoveable property of State Subjects to those who are not. Banks, included since banks are juridical persons. Lift the corporate veil and humans emerge – non-State subjects all.
The Court held that "The Union Parliament is lacking the legislative competence to enact laws in respect of 'administration of justice and constitution of Courts', which Entry has been shifted to List III (Concurrent List) by Constitution (Forty Second Amendment) Act 1976 carried in the Constitution in the year 1976, which amendment has not been made applicable to the State of J&K.
"Parliament has no legislative competence to make laws in respect of J&K, which would affect the interests of the State subjects/citizens of the State as defined by law and Section 6 of the Constitution of J&K qua their immoveable properties. It is the State in terms of the section 5 of the Constitution of J&K, which has the absolute sovereign power to legislate laws touching the rights of its State subjects/citizens qua their immoveable properties. The State legislature, in terms of section 140 of Transfer of property act, 1882, has authorised for mortgage of property in favour of the Institutions mentioned therein. In respect of schedule first, only simple mortgage has been authorised to be executed in their favour. The sale of immoveable property in pursuance to a Civil Court decree obtained by the bank/financial institution in respect of the mortgaged property cannot be made in favour of non-State subjects. Since the field of legislation as prescribed in List I, Entries of some of which have been extended to the State of J&K, do not authorise the Union Parliament to legislate law, as already stated, which affects the interests of the State subjects/citizens of J&K qua their immoveable property, the competence of the Parliament to legislate section 13(1) and (4) is held to be beyond its legislative competence to the extent of State of J&K, the Union Parliament having no legislative competence to enact laws, vide 17(A), 18(B), 34, 35, 36, the Act of 2002 cannot be implemented in the State of J&K."
So much for the Act. Now, the Constitution on which these observations in the judgment are of enduring relevance. "The Constitution of India, in the above legal situation, could not apply, by its own force, to the State of J&K. Article 370 of the Constitution of India, provided mechanism and procedure for applying constitutional provisions and statutes to the State of J&K. The Dominion Government, however, could not extend provisions of the Constitution or other laws to the State of J&K unilaterally. Same could be done either with consultation with the Government of J&K or with its concurrence. The sovereignty of the State of J&K under the rule of Maharaja, even after signing of Instrument of Accession and in view of framing of its own Constitution, thus, legally and constitutionally remained intact and untampered. The sovereign character of the State Constitution and State Assembly, hich, like other wings of the State, is creature of State Constitution, has, thus, sovereign power to make laws for its subjects.
"The Parliament has been authorised to make laws in respect of those matters in the Union List and Concurrent List, which, in consultation with the Government of the State are declared by the President to correspond to matters specified in the Instrument of Accession, governing the accession of State to the dominion of India. The other laws in the said State could be made by the Parliament with concurrence of the Government of the State, which are to be specified by the President by an order.
"Entry 45 of List (I) of Schedule 7th of Constitution of India has been extended to the State of J&K in accordance with the mechanism and procedure prescribed by Article 370. The Parliament has, thus, power to legislate laws in respect of banking. The Parliament, however, has no power to legislate law about the subject "administration of justice, the land & the other immoveable properties". In terms of section 5 of the Constitution, which, in view of discussion made in this judgment, affects these laws and rights of the State subjects, thus cannot be extended to the State of J&K."
Now for these crucial observations "The Constitution of J&K, as already stated, is sovereign in character and the State Assembly, exercises sovereign power to legislate laws. In the community of States of India, in view of law laid down by Hon'ble the Supreme Court in Prem Nath Koul and Sampat Prakash's cases, the State of J&K occupies a distinct, unique and special position. Thus, in law, the State of J&K constitutes a class in itself and cannot be compared to the other states of the country."
The Court next dealt with Art. 35A in these explicit terms "Article 35(A), as has been applied to the State of J&K not only recognizes but clarifies the aforestated constitutional and legal position. This article, on its own, does not give anything new to the State of J&K. Article 14 of the Constitution of India, as has been made applicable to the State of J&K, thus, gave equal protection of laws to the State subjects/ citizens as a class apart. Similarly, Article 19(1)(f) of the Constitution of India, which has been made applicable to the State of J&K and till date continues to be in force in the State, recognizes the right to own, hold and dispose of property, which right otherwise is inherent in the State subjects/citizens of the State of J&K, who stand defined in terms of Elans/Orders of His Highness and the Constitution of J&K…..
"Laws are located in time and space. In the State of J&K, the immoveable property of a State subject/citizen, cannot be permitted to be transferred to a non State subject. This legal and constitutional protection is inherent in the State subjects of the State of J&K and this fundamental and basic inherent right cannot be taken away in view of peculiar and special constitutional position occupied by State of Jammu and Kashmir. No law can be made to abridge or affect this basic right of citizens of Jammu and Kashmir. The Act of 2002 does adversely impact the inherent, natural and constitutional rights of the State subjects…. Article 35A is clarificatory provision to clear the issue of constitutional position obtaining in rest of country in contrast to State of J&K. This provision clears the constitutional relationship between people of rest of country with people of J&K."
Article 35A, as the judgment says, is purely "clarificatory". It is based on the Maharaja's Notification of 20 April 1927 which was issued at the instance of Kashmiri Pandits who feared an influx from Punjab.
The matter came up when the Delhi Agreement was under negotiation. On 20 July 1952 Nehru met a Kashmiri delegation comprising Sheikh Saheb, Mirza Afzal Beg, Bakshi Ghulam Mohammed, Girdharilal Dogra and D.P. Dhar. Nehru's record of the talks reads: "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 pointed out that under Article 19(5) of the Constitution this was clearly permissible both in regard to the existing law or any subsequent legislation on the subject. It was admitted that, having regard to the special position of Kashmir, some such protection was necessary for the permanent residents of the State. There were in fact provisions in the Constitution giving special protection, such as in the tribal areas in Assam or in the land legislation in the Punjab and elsewhere, which prevented non-agriculturists from acquiring land. This was matter which could be dealt with by the State Legislature.
"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. Till then, the existing State law would apply.' " Article 35A is based on a solemn pact between the Union and the State. It cannot be unilaterally altered.
In his Statement to the Lok Sabha on the accord, Nehru said: "The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time past, in the Maharaja's time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there. And that continues. And in the state subjects notification by the Maharaja, they defined four grades of subjects, Class number one, Class two, Class three and Class four. And unless you come in one of these classes, you just cannot acquire land there, or any immovable property. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sale qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Now they want to vary the old Maharaja's laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. So far as we are concerned, I agree that under Article 19, clause (5), of our Constitution, we think it is clearly permissible both in regard to the existing law and any subsequent legislation.
However, we agree that this should be cleared up. The old state's subjects definition gave certain privileges regarding this acquisition of land, the services, and other minor things, I think, State scholarships and the rest. So, we agreed and noted this down: '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 services and like matters. Till then t he existing State law should apply.' "
In his report to Kashmir's Constituent Assembly on 11 August 1952, Sheikh Saheb said: "It was agreed that in accordance with Article 5 of the Indian Constitution persons who have their domicile in the Jammu and Kashmir State shall be the citizens of India. it was further agreed 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 acquisition of immovable property, appointments to services and like matters. Till then the existing State law would apply. It was also agreed that special provision should be made in the laws governing citizenship to provide for the return of those permanent residents of Jammu and Kashmir State, who went to Pakistan in connection with the disturbance of 1947 or in fear of them as well as of those who had left for Pakistan earlier but could not return. If they returned, they should be entitled to the rights, and privileges and obligations of citizenship.
"There are historic reasons which necessitate such constitutional safeguards as for centuries past, the people of the State have been victims of exploitation at the hands of their well-to-do neighbours. The Hon'ble Members are perhaps aware that in the late twenties, the people of Jammu and Kashmir agitated for the protection of their bona fide rights against the superior competing interests of the non-residents of the State. It was in response to this popular demand that the Government of India appreciated the need for such a safeguard. No definition of the special rights and privileges of the residents of the State can afford to remain static. The need may arise at one stage or the other to liberalise such a definition. The importance of the fact that State Legislature shall retain powers to be able to effect such modifications becomes obvious in this context."
It is highly significant that even New Delhi's stooges who staged the coup of 8 August 1953, at Nehru's instance, did not dare to renege on the understandings of 1957. The Drafting Committee, now radically changed, presented its Report to Kishmir's Constituent Assembly on 11 February 1954. The Report recommended certain amendment to the Constitution of India in its application to Kashmir. Article 35A was one of them. This Report was signed by Girdhari Lal Dogra, Mir Qasim, D. P. Dhar, Ghulam Rasool Renzu and Harbans Singh Azad. It was adopted by the Assembly on 15 February 1954 and the amendments were incoporated in the President's Order of 14 May 1954 entitled The Constitution (Application to Jammu & Kashmir) Order 1954. it added Article 35A which reads thus: "Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the legislature of the State: (a) defining the classes or persons who are or shall be, permanent residents of the State of Jammu and Kashmir, or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects:- (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part."
The 51 page petition filed by "We, the Citizens" in the Supreme Court on 23 July 2014 reeks of emotive politics, factual errors of the crassest kind, and far-fetched argument which are manifestly absurd.
It says (p. 38) that "in the year 1954, the State of Jammu & Kashmir adopted its Constitution". In fact it was adopted on 17 November 1956. Earlier (p.34) we are told that "The same Constituent Assembly declared on 6 February 1954 that the State of Jammu & Kashmir is merged (sic.) into the Union of States i.e. India (Bharat)". The difference between accession and merger is lost on the draftsman. Merger entails loss of identity; accession does not. J&K stands tall and assertive. And where did the draftsman of the petition get the date (6 February 1954) from? The Official Report of the J&K Constituent Assembly Debates, First Volume (1951-1955) covers the debate on that day (pp 790-936). It discussed and adopted the Reports of the Basic Principles Committee and of the Advisory Committee on Fundamental Rights and Citizenship. There was no motion for "merger". Also, the Assembly's pro-tem Chairman was not any "Mr. Maulana Masudi Normani" but the highly respected and famous Maulana Mohammed Saeed Masoodi. You do not prefix "Mr" before Maulana or Pandit.
"Article 370 empowering the President amend the Constitution is ultra vires". But the Constituent Assembly of India which adopted it was a sovereign body. How then can Art.370 be ultra vires? Ultra vires of what? The Assembly of India, as a sovereign body? Remember the Jan Sangh (and BJP) patron Shyama Prasad Mookerjee was a member of the Constituent Assembly of India and of the Cabinet. He was party to Art. 370 as Sheikh Saheb tartly reminded him in a detailed letter of 4 February 1953. "This arrangement has not been arrived at now but as early as 1949 when you happened to be a part of the Government."
The Petition contends that "Kashmir continued to be a part of the Federation of Indian Union of States prior to 1935 and its accession was complete vide codified law namely Government of India Act, 1935". Everyone knows that the federal part of the Act never went into force because the princes refused to sign the Instrument of Accession. Only the part on provincial autonomy in British India and responsible government came into force. On this glaring error an argument is built that Kashmir was already part of India on 15 August 1947 (pp. 23-24)
Hold your breath "There was no special provision made in the Indian Constitution giving special status/treatment to the State of Jammu & Kashmir". Irrelevant Emotive politics comes to the fore. "That as per study conducted by Jammu Kashmir Study Centre which has published a book entitled as Jammu Kashmir Tathya, Samsayein or Samadhan published by Jammu Kasshmir Adhyayan Kendra, Jammu, wherein it is mentioned that gallantry award namely "Param Vir Chakra" has been awarded to total 21 military personnel since independence of India out of the 13 award of Param Vir Chakra awarded to those who have sacrificed their life in war on the soil of Kashmir. It is worth mentioning that separatist movement is limited to only 4 districts of Jammu & Kashmir out of 10. The districts where separatist movement is going on are Baramulla, Srinagar, Pulwana-Anantnag and Shopian Nagar.
The following caste and religious people of Jammu & Kashmir have never participated in separatist movement i.e. Gurjar, Shia, Pahadi, Nationalist Muslim, Kashmiri Sikh, Pandit, Ladakh people, Dogras and Buddhist. Thus it is evident that the peace loving and nationalist people of Kashmir have never been in support of caste and religious people of Jammu & Kashmir have never participated in separatist movement. Therefore, the exercise of power under temporary provisions of Article 370(1) by the President of India to create new Article in the Constitution of India namely Article 35A is against the very spirit of oneness of India (Bharat). The framers of the Constitution never dreamt of disintegration or separation of any of its states from the territory of India (Bharat) and therefore inclusion of Article 35A in the Constitution of India vide Constitution (Application to Jammu & Kashmir) Order 1954 is against the very sole of Indian Constitution i.e. oneness." What of Articles 371A and 371G on Nagaland and Mizoram, respectively?
Legal absurdities are piled up furiously. In 1971, following the abolition of the princes' privy purses and privileges, the definition of "Ruler" in Art. 366 (22) of the Constitution was amended to speak of them in the past tense. Read this: "The effect of this definition is that the ruler who enter into Merger agreement (Instrument of Accession) or the like ceased to be a ruler for all purposes. AIR 1961 SC 775, Pravir v. State of M.P. Thus, effect of Instrument of Accession became inoperative after 26th Amendment in the Constitution of India in the year 1971. Therefore, the special treatment to the State of Jammu & Kashmir in the garb of Article 35A of the Constitution of India ceased after this 26th Amendment in the Constitution." If the Instrument of Accession "became inoperative" is not the result Kashmir's secession from India as the separatists contend? By 1971 "the ruler" had been put in the dustbin of history. Kashmir abolished the monarchy.
The legal argument is three-fold. First, the President cannot by-pass Parliament's Amending power, under Art. 368, by making an Order under Art. 370. Secondly, he cannot add a new provision Art. 35A. Lastly, it is violative of "the basic structure" of the State's Constitution as it violates Art.14, the guarantee of equality before the law. All three are groundless.
"The Petitioner is unable to find out as to whether the President can amend the Constitution by incorporating new Article by exercising power under Article 370 (1) (d) of the Constitution of India. The incorporation of new Article namely Article 35A to the Constitution of India has been effected vide Constitution (Application to Jammu & Kashmir) order 1954 which is beyond the jurisdiction and power of Respondent No. 1 inasmuch as the said provision namely Article 35A is unconstitutional".
If he had only read Art.370 his inability might have vanished. It is part of the same Constitution as Art. 368. The 1954 Order under Art.370 excludes Art.368 from application to J&K, unless applied to it by an Order under Article 370.
Art. 370 recognises the sovereignty of J&K's Constituent Assembly as the ultimate ratificatory authority. Only in the interim was the President empowered to extend Central laws as well as provisions of the Constitution of India to Kashmir "subject to such exceptions and modifications" as he may specify. On 14 May 1954 he added Art.35A in order to implement the Delhi Agreement of July 1952. This is a constituent power subject to ratification of the Constituent Assembly.
Article 14 (guarantee of equality) means that equals should be treated alike. It permits reasonable classification that bears reasonable relation to the object of the law. History justifies this in the cases of Kashmir, Nagaland and Mizoram.
But "the basic structure" of the Constitution of Jammu & Kashmir was flagrantly violated when its elected Sadar-e-Riyasat was replaced by a Centrally appointed Governor. So it was, also, when provisions of India's Constitution and laws were extended to render its guaranteed autonomy, its heart and "basic structure" nugatory.
Destruction of that "basic structure" is at the core of the many causes of the present discontent. Will it ever be restored? The Constitution of J&K was wrecked. So was Art. 370. The 1975 Accord was a political accord. Sheikh Saheb was out of power. In 1977 Indira Gandhi wrecked it. Attempts to give it life failed. The times now demand a new order based on popular aspirations.