Kashmir faces an existential threat today. Article 370 of the Indian Constitution, supposedly a guarantee of the State's autonomy, is on wreck. But autonomy is a facet of identity a vital one. Now that identity, itself is under attack. Chief Minister Mehbooba did well to call on the President of the National Conference Farooq Abdullah on 8 August "to seek his guidance and support on the issue of the special status of our State which is under serious threat". His response was positive. One wonders though how much guidance the veteran could possibly have provided her in a 20-minute meeting. The threat calls for a united front. Distrust between the two sides is very old and it is not dispelled by that brief meeting; still less by the CM's statement in New Delhi on 11 August on the so-called assurance which the Prime Minister Narendra Modi gave her. Her statement does not quieten doubt. It fortifies it.
The Hindu's report is clear: "Emerging from the 15 minute meeting with the Prime Minister, Ms. Mufti claimed that Mr. Modi had assured that any discussion on the special provisions for the State would be on the basis of the Agenda for the Alliance between the PDP and the BJP. 'That is the basis of the agenda and no one can go against it. The response of the Prime Minister is positive. The Prime Minister gave 100% assurance on (sic.) the Agenda of Alliance.' "
This statement suffers from four flaws.
1. It comes from the CM, not the PM.
2. The Agenda of Alliance is deceptively vague. "The present position will be maintained on all the constitutional provisions pertaining to J&K, including the special status in the Constitution of India." And this document will be "the basis" for any "discussion on the special provisions fort the state". So, the matter is not closed. It is wide open – "for any discussion".
3. Even this moth-eaten assurance is in respect of Article 370 which was enacted on 20 January 1950; not in respect of Article 35A which was enacted on 14 May 1954. The situation called for a specific assurance – not in percentages – in respect of Article 35A.
4. The case before the Supreme Court concerns Article 35A and was filed by a BJP body. The Modi regime hopes to accomplish its triple agenda through the judicial route – Triple talaq; Babri Masjid and Article 370. Did she brief Farooq Abdullah on her talks with Modi?
What was required was an explicit assurance from Modi on behalf of his Government on the floor of Parliament. The PDP's MP, Muzaffar Hussein Beigh did not raise it. On 12 August at a gala gathering in the presence of Modi, Beigh compared Modi to Gandhi. On Modi's watch nearly 2000 Muslims were killed in the Gujarat pogrom in 2000. Gandhi was murdered because he tried to protect Muslims. Mod and Beigh deserve each other.
The PDP's coalition partner is the BJP and its men have, especially in recent days, attacked Article 35A, obviously with their Central leaders' blessings. It is hard to find fault with the former CM, Omar Abdullah's criticism that Mehbooba is running with the hare while hunting with the hounds. He was present at the Mehbooba-Farooq meeting. She owed a duty to brief both on her meeting with Modi. She did not. It is for the CM to dispel the distrust.
The stakes are high and both sides must unite on this single issue which affects Kashmir's very identity and existence. They must unite to publish a White Paper on Article 35A and adopt a Joint Manifesto which these leaders themselves should read out at a public rally in Srinagar. It should be endorsed in public meetings everywhere while the campaign lasts. A good precedent is the Mutafiqa Fatwa read out at public meetings during the Khilafat Movement. As part of the "Save Article 35A" Movement a J&K People's Convention should be held at which not only political parties but Kashmir's intelligentsia, educationists, scholars and former civil servants could participate. Two such Conventions were held in Srinagar under Sheikh Muhammad Abdullah's leadership in October 1968 and June 1970. Jaya Prakash Narayan addressed the 1970 Convention.
This requires cooperation between Mehbooba Mufti and Farooq Abdullah based on trust. It is not an impossible demand; but a test of their commitments and their leadership. Kashmiri's history is a tragic record of persistent failures and betrayals by its leaders. That record must end.
Article 35A existed in fact and spirit for nearly a century before it was enacted as law in 1954; since 1846 when Kashmir became part of the British Empire as a result of the Treaty of Amritsar 1846; assigning it to the Dogra Chief Gulab Singh for Rs.75 lakhs. He was rewarded for his treachery to his Sikh masters in Lahore. Writing in 1895 in his classic The Valley of Kashmir, Walter Lawrence, who was Settlement Commissioner of J&K, recorded the curbs on permanent hereditary occupants of lands. "This right of occupancy is hereditary, but it is not alienable either by sale of mortgage". He opined that it would be "dangerous" not to impose the restriction. "Whole villages have been sold for paltry sums" (pp. 430-432).
Pandit Prem Nath Bazaz dealt with this topic in both his books. Inside Kashmir (The Kashmir Publishing Co., Srinaghar, 1941) and in The History of struggle for freedom in Kashmir (Pamposh Publications, 1954). In Inside Kashmir he recorded The Maharaja owned the lands. Chekdars or tenants-at-will could occupy them so long as they paid the revenue but could neither sell nor mortgage his land. At the beginning of the 20th Century "a new problem confronted the people" – the outsider occupying posts in the administration. In 1912 a definition of the "State Subject" was formulated for the first time. "The cry of 'down with the outsider' was raised mostly by the Hindus."
In 1922 a State Council of Ministers was formed. Hari Singh, the heir apparent to the throne and Senior Member of the Council, issued a Circular which said: "The Maharaja Sahib Bahadur has been pleased to direct that in future no non-State subject shall be appointed to any position without the express orders of His Highness-in-Council in each case. Each such proposal shall be accompanied by a full statement of reasons in writing as to why it is considered necessary to appoint a non-State subject, it being definitely stated whether there is no State subject qualified and available for the appointment proposed. In like manner no scholarships or training expenses of any kind should be granted to non-State subjects. His Highness has also directed that any infringement of this order will be very seriously dealt with.
"His Highness the Maharaja Sahib has been pleased to inform you that in future all grants of land for agricultural and house-building purpose and grant of houses and other State property shall be made to State subjects only. …"
A State Subject Definition Committee was set up. It submitted its Report in 1925 the year Hari Singh became Maharaja. He readily accepted its Recommendations. A definition of "Hereditary State Subject" was formulated and it became law as from 31 January 1927 in the form of a Notification dated 20 April 1927.
Bazaz pursued the topic in his History showing how Muslims were outside the entire debate. "The poverty of the Muslim masses was appalling. Dressed in rags which could hardly hide his body and barefooted, a Muslim peasant presented the appearance rather of a starving beggar than of one who filled the coffers of the State. He worked laboriously in the fields during the six months of the summer to pay the State its revenues and taxes, the officials their rasum and the money-lender his interest. Most of them were landless labourers working as serfs of the absentee landlord…. In the countryside the Muslim was synonymous with the hewer of wood and drawer of water. All sort of dirty and menial work was to be done by him. A Hindu was respectable in the eyes of the society, and the Muslim, because he was a Muslim, was looked down upon as belonging to an inferior class." It was the Kashmir Pandits who had launched the movement "Kashmir for Kashmiris".
Bazaz wrote that the 1927 "definition all at once stopped the recruitment of the Punjabis in the services. But it did not equally benefit all the communities residing in the State. With Hari Singh's pro-Dogra policy in operation, the people of Jammu particularly Rajputs got the most of the big jobs while the Pandits were recruited as clerks in offices vacated by the Punjabis. Needless to say that the Muslims were as yet out of the picture."
Prime Minister Jawaharlal Nehru spoke twice on the subject when he reported to Parliament on the Delhi Agreement of 1952. He told the Lok Sabha on 24 July 1952: "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 may 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 have 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 sole 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 liberalize 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 agreed 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 the existing State law should apply." The solution was houseboats in which the British could dwell.
Speaking in the Rajya Sabha on 7 August 1952, Nehru amplified: "Honourable Members know that Kashmir is supposed to be one of the beauty spots of the world. And apart from its being a beauty spot, there are many other things which attract people there. And from olden times the old Maharajas, who succumbed to many things that came from the then British Government, did not succumb to one thing. They were afraid that the climate of Kashmir and its other attractive features being what they are, that Kashmir might become a kind of colony of the British if they came and settled down there in large numbers. They were afraid of that. So they stuck to one thing – that no foreigner could acquire property in Kashmir. And they did keep them out. They made rules to the effect that only State subjects could acquire property except by special permission, and so on.
"In fact, they have made four different classes of subjects for that purpose. Property was given to Class I and Class II. These rules in regard to property still subsist. Those are the rules in regard to property in Kashmir and everybody in Kashmir, to whatever group or community or religion he belongs, wants to uphold these rules, naturally, because they are for the benefit of the residents of Kashmir, whether Hindus or Muslims. They are afraid that people from India or elsewhere, rich people and others, might come and buy up property there, and thereby gradually all kinds of vested interests would grow up in property in Kashmir on behalf of people from outside. So far as we were concerned, we thought that this was only the existing law there, and the existing law prevails under Article 370 of the Constitution, which I have just read.
"We thought it was a perfectly justifiable feeling on their part, and that acquisition of property in Kashmir State should be protected on behalf of the people there. They propose, quite rightly too, to change their present always on the subject, as they are too cumbersome. They have made some simple rules. Nevertheless, in essence, they are to regulate acquisition of property by outsiders in the State.
"The House will perhaps remember that we have given protection in this regard in various parts of the territories of India. For instance, in the north-east of Assam tribal areas we have given them protection. Nobody from outside can go and take possession of property there, because if we once give them permission, there is no doubt that these tribal people will be exploited by outsiders who will go there and buy up their lands and use them for making money while the people of those areas will go to the wall. So we agreed that to avoid exploitation of the State territory it was desirable that these rights and privileges should continue. As a matter of fact, under Article 19 (5) of our Constitution this was clearly permissible – and that is our view even now – both in regard to existing law or any subsequent legislation. But if there was any trace of doubt, it should be made clear."
We must now move to the Constituent Assembly of Jammu & Kashmir. The Report of the Basic Principles Committee was presented on 3 February 1954 – Para 10 of the Report said; "All these Fundamental Rights should be subject to the over-riding condition that:- (i) no law of the State relating to State Subjects to be hereafter called "Permanent Residents" and regulating their rights and privileges; and (ii) no law hereafter to be made by the State Legislature defining the permanent residents and conferring on them special rights and privileges in relation to acquisition and holding of property in the State or in the matter of employment under the State and imposing restrictions on citizens other than permanent residents for settling within the State should become void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Part III of Constitution of India."
On 11 February the Report of the Drafting Committee was presented to the Constituent Assembly. An Annexure to the Report set out the provisions of the Indian Constitution, besides Articles 1 and 370, which should apply to J&K. Obviously this Annexure had been settled with the Government of India. Article 35A was among them (Constituent Assembly Debates; Part 1; pp 841-842). On 15 February 1954, Girdhari Lal Dogra moved that a copy of the Annexure be sent to the Government of India "for appropriate action". The President's major Order under Article 370 followed on 17 May 1954 inserting, among other provisions, Article 35A in the Constitution of India.
It is part of a compact between Kashmir and the Union. However, this fact is commonly overlooked; even repeal of Article 35A – which is constitutionally impossible – will not alter the situation. For, the Notification of 1927 is part of the Constitution of Jammu & Kashmir. Part III deals with Permanent Residents. Section 6 defines who they are. "(1) Every person who is, or is deemed to be a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954 – (a) he was a State Subject of class I or of Class II; or (b) having lawfully acquired immovable property in the State, has been ordinarily, resident in the State for not less than ten years prior to that date. (2) Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or of Class II and who having migrated after the first day of March, 1947, to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the state. (3) In this section, the expression "State Subject of Class I or of Class II" shall have the same meaning as in State Notification No. I-L/84 dated the Twenty-seventh June, 1932".
In legal parlance this is called incorporation by reference. Thus, independently of Article 35A the definition in Section 6 of the State's Constitution will still apply. All that Article 35A does is to protect laws on permanent residents from challenge on the ground that they violate fundamental rights. Article 35A is part of the Delhi Agreement between two Governments, of India and of J&K, concluded 65 years ago. No Court can or should ignore this fact.
The Privy Council drew pointed attention to the need to reckon with act and realities when interpreting constitutional statutes. In British Coal Corporation vs The King (1935) AC. 500 it said: "It is doubtless true that the power of the Imperial Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired; indeed the Imperial Parliament could, as a matter of abstract law, repeal or disregard s. 4 of the Statute. But that is theory and has no relation to realities." Similar curbs exist in Himachal Pradesh. No one mentions them.
The Mizo Accord of 30 June 1986 signed between the Rajiv Gandhi regime and the militant Mizo National Front leader Laldenga provides in Para 4.3 II "Notwithstanding anything contained in the Constitution, no Act of Parliament in respect of (a) Religion or Social practices of the Mizos, (b) Mizo customary Law or procedure, (c) Administration of Civil and Criminal Justice involving decisions according to Mizo customary Law, (d) Ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of Mizoram by a resolution so decides."
It also guaranteed Mizoram a right to conduct cross border international trade in Para 7. "Border trade in locally produced or grown agricultural commodities could be allowed under a scheme to be formulated by the Central Government, subject to international arrangement with neighbouring counties."
Soon thereafter Article 371-G was introduced in India's Constitution to implement the Accord – just as Article 370 was inserted in 1954 to implement the Nehru-Abdullah Accord. Article 371G reads thus: "Notwithstanding 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 the State of Mizoram by a resolution so decides."
This emulates Article 371A on Nagaland which was added in 1962. It says: "Notwithstanding in this Constitution – (a) no Act of Parliament in respect of – (i) religious 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, shall apply to the State of Nagaland unless the Legislative Assembly of the State of Nagaland by a resolution so decides."
Article 35A was not inserted by an executive order. A Constitutional provision was made by the President in 1954 as sanctioned by the Constitution itself. The doctrine of basic structure of the Constitution applies only to legislation; not to a constitutional provision.
S. 6 of J&K's Constitution stands on an even higher footing. It is not subject to Art. 370. The Constituent Assembly was not set up by a sanction of the Indian Constitution or of the Government of India. It was set up by the State itself acting independently of both under the Maharaja's Proclamation of 1 May 1951 on the advice of Sheikh Abdullah. He repeatedly stressed its sovereign character. The Privy Council ruled in Queen vs. Burah (1878) A.C. 859 that the legislature of colonial India acting within its Charter "is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself" (p.904). This applies with even greater force to Kashmir's Constituent Assembly as regards Section 6 of the State's Constitution and to the President vis-à-vis Article 370. The Constituent Assembly conferred on him its Constituent power to apply Constitutional provisions by an Order. Neither Article 370 nor Art. 35A can be challenged. What can be challenged is violation of their terms – which is just the case in respect of Art. 370.
The debate is tinged with politics to a high degree which renders judicial arbitration fraught with danger. Both L. K. Advani and A.B. Vajpayee said repeatedly that no Court can decide on the Babri Masjid question. The Telegraph's Srinagar correspondent reported; "Many in Kashmir believe that the BJP, which partners the ruling PDP, and its ideological mentor RSS – both historically opposed to the State's special status – are using the judicial route as a ploy to change the demography of the country's only Muslim-majority state. … In Jammu, the provincial president of the opposition National Conference, Devinder Rana, said the region would be hit more as outsiders, reluctant to settle in Kashmir, would head for Jammu in droves." (13 August 2017).
In the U.S. its Supreme Court's decision in the Dreold Scott case triggered off the Civil War. Judicial statesmanship lies in judicial restraint.