May This Fly For Ever

The headlines in media scream of possible tinkering with the Article 35A Constitution of India. Reports suggest an end to the rights and privileges, the Permanent Residents of Jammu and Kashmir enjoy in the matters of acquisition of immovable property, employment, scholarships etc – symbol of autonomy guaranteed  to the people of Jammu, Kashmir and Ladakh. The latest is Times of India news item dated February 24 reporting that the “government is… considering the option of promulgating an ordinance to scrap the provision which is key to the endurance of the “special status” provided to the State through Article 370 of the Constitution.” Is such a course permissible? The question makes us revisit the background  in which Article 35A was incorporated  by the Presidential Order, 1954.

S.M. Abdullah, the Prime Minster of Jammu and Kashmir in his first address to the Constituent Assembly on 5th November 1951 informed the Assembly that one of the important tasks before it was to decide which of the three “alternatives” –  accession to India, accession to Pakistan or an independent status, the Jammu and Kashmir was to follow.

 The Prime Minister while reminding the Assembly that it was to accord “full consideration” to “three alternatives” and “declare its reasoned conclusion regarding accession” invoked mercy of  God  to lead it “forward on the right path.” This was not for the first and last time that the Prime Minister asserted the sovereignty of Jammu and Kashmir notwithstanding the  Accession – made conditional  by the Ruler and conditionally accepted by Government of India. He on 7th October 1948 wrote to Sardar Patel, Home Minister of India “with the taking over of the State forces by the Indian Government, it was agreed that steps would be taken to reorganise and rebuild our army so that when the present emergency is over and the Indian forces are withdrawn, the State will be left with a proper organised army of its own to fall back upon”.

The stand was reiterated even more forcefully on August 19,1952 by categorically stating in the Assembly that  though asked to sign the Constitution of India, “they” (Regent-in- Council) did not agree as Jammu and Kashmir was different from other States and all powers except three subjects were to remain “in our hands” and that  “under the provisions of International Agreement we can severe our relations with India even today if we wish to do so.

This right is given to our State and not others.” These statements were not rebutted by New Delhi, rather reinforced by utterances of Indian Prime Minister within and outside Parliament and by Indian stand before United Nations. What else must one gather from 15th January, 1948 statement of Mr Iyenger before UN that “whether Kashmir should withdraw from her accession to India and either accedes to India or remains independent with a right to claim admission as a member of UNO, all this we have recognised to be a matter of unfettered decision by the people of Jammu and Kashmir.” Both the sides impliedly agreed that Instrument of Accession was signed only to meet an emergency, to legitimise deployment of Indian troops to Jammu and Kashmir and not to create any permanent relationship and that such a relationship could be created only by the people of Jammu and Kashmir through a free and impartial referendum.

Jammu and Kashmir therefore notwithstanding Accession by its Ruler continued to enjoy sovereign status. The conditional Instrument of Accession and its conditional acceptance at the most created a commitment that joining India would be one of the options in the promised referendum. Close on heels of the  Prime Minister Abdullah’s call to Constituent Assembly to decide on one of the three alternatives in a dispassionate and reasoned manner, came the  report of Basic Principles Committee headed by the Prime Minister.

The report recommended the fundamental principles that were to edifice  the polity. The Prime Minister on 7th June 1952 moving a resolution for adoption of “National Flag” of Jammu and Kashmir said “every nation of world has its aspirations, ambitions,  desires, aims and objects. Similarly the four million people of Kashmir have their own aspirations, ambitions and desires….” As the Flag was adopted and unfurled in the gallery, all the members – Kaushak Bakola, Krishen Dev Sethi, Girdhari Lal Dogra, Sardar Kulbir Singh, amongst them, rose and with tears in their eyes sang the National song  “May this fly for ever.”

The Basic Principles Committee report adopted on 12th June 1952 recommended a democratic constitution, termination of the hereditary Rule and elected Head of the State. Jammu and Kashmir was asserting its sovereignty. New Delhi keen to have clarity on issues like Citizenship, the Headship of the State etc pending promised referendum, invited Kashmir leadership to Delhi for talks on these matters. A delegation led by Beg Saheb visited New Delhi for discussion. The Prime Minister, alive to the importance of the deliberations, also joined the talks.

The discussions culminated in Delhi Agreement inked on 24th July 1952. The areas covered under the Agreement included Citizenship, National Flag, Residuary Powers and Headship of the State. Let us first examine legal character of Delhi Agreement 1952. Jammu and Kashmir, even after the 27th October 1947 retained its sovereignty. It followed its own Constitution – Jammu and Kashmir Constitution Act 1996 Svt (1939 AD), had  Head of the State assisted by Prime Minister    with Council of Ministers.

The Agreement was therefore entered into by two States. This is the reason that once the Agreement was arrived at, the two Prime Ministers tabled it in their legislatures and laid motion for its  approval by Parliament and Constituent Assembly respectively. The Prime Minister placed the  Agreement before the Constituent Assembly on 11th August 1952 and the House after marathon debate involving almost all important members passed the resolution moved by the Prime Minister and put seal of approval on the Agreement on 19th August1952.

The Prime Minister of India likewise placed the Agreement before the Parliament on 5th August 1952. While dilating on various aspects of Delhi Agreement, the Prime Minister reminded the Parliament that  “Jammu and Kashmir should be treated in a somewhat different way from that of other States in India…..that agreements that have been arrived at….are satisfactory from the point of view ..of India ..as well as…Jammu and Kashmir..”. Exhorting the House to approve the Agreement, the Prime Minister referred to role of United Nations and ” the pledges we (India) have made’.

The Agreement was therefore entered into by two States. This is the reason that once the Agreement was arrived at, the two Prime Ministers tabled it in their legislatures and laid motion for its  approval by Parliament and Constituent Assembly respectively. The Prime Minister placed the  Agreement before the Constituent Assembly on 11th August 1952 and the House after marathon debate involving almost all important members passed the resolution moved by the Prime Minister and put seal of approval on the Agreement on 19th August1952.

The Prime Minister of India likewise placed the Agreement before the Parliament on 5th August 1952. While dilating on various aspects of Delhi Agreement, the Prime Minister reminded the Parliament that  “Jammu and Kashmir should be treated in a somewhat different way from that of other States in India…..that agreements that have been arrived at….are satisfactory from the point of view ..of India ..as well as…Jammu and Kashmir..”. Exhorting the House to approve the Agreement, the Prime Minister referred to role of United Nations and ” the pledges we (India) have made’.

 The motion moved in the name of Prime Minister evoked vigorous debate and was finally adopted on 5th August, 1952 and the agreement approved. The Agreement was entered into and ratified when the Constituent Assembly was yet to take a call on the question of accession or independent status. The Delhi Agreement 1952,  therefore is not in the nature of  secret understanding, but an agreement between two sovereigns – Regent  in Council – repository of all executive, legislative and judicial power and the Government of India and ratified by the two legislatures. The  Agreement, in the circumstances, has  flavour and characteristics of a treaty or agreement binding on the parties and the successor governments. Now a look at part of  the Agreement relevant to present discussion.    

Let us be reminded that the Presidential Order of 1950   did not make Part II of the Indian Constitution dealing with Citizenship applicable to the State. It is equally important to note that Jammu and Kashmir after 27th October 1947 continued to be governed by Jammu and Kashmir Constitution Act 1996 Svt, and not by Government of India Act 1935 as was the case with other States acceding to India.

The Constitution Act of 1996 Svt. read with Notification of 20th April 1927 defining the State Subject, governed the citizenship law in Jammu and Kashmir and the people of Jammu and Kashmir even after 27th October 1947  continued to be citizens of Jammu and Kashmir with a different nomenclature though. The question of citizenship obviously was a matter of concern for New Delhi and on the top of the list.

The Prime Minister thus announced the Agreement on citizenship  : “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, appointment to services and like matters.”

The agreement, the Prime Minister Abdullah announced, also provided for return of those permanent residents who left State in connection with disturbances of 1947 and were to be given citizenship. The Prime Minister deliberating on the historical background of “special rights and privileges” remarked “I am glad  to say that the Government of India appreciated the need for such a safeguard.”

The Prime Minister of India likewise apprising the Parliament, of the agreement on citizenship and  special rights and privileges to the people of Jammu and Kashmir told Parliament that  ” it was perfectly justifiable feeling on their part, and that acquisition of property in Kashmir State should be protected on behalf of the people there……. we agreed to this.”

The Agreement entered into by two states and ratified by their legislatures cast an obligation on the parties to make necessary changes and modifications in  respective Constitutions.

The Constitution of Jammu and Kashmir was in making  when Delhi Agreement was clinched and towards  implementation  of one of the parts of the Agreement, the Constituent Assembly on 12th November, 1952 amended the J&K Constitution Act 1996 (1939 AD) by the Constitution (Amendment) Act, 2009. The Government of India likewise  brought changes and modifications in its Constitution as applicable to Jammu and Kashmir by Constitutional Order of 1954.

One of the changes and modifications  made in connection with implementation of  Delhi Agreement in Constitution of India in its application to Jammu and Kashmir was introduction of 35 A to the Indian Constitution. The modification was to implement the part of the Agreement that the “State Legislature shall have power to define and regulate the rights and privileges of the permanent residents of Jammu and Kashmir..” The Article was intended to provide protective cover to the law made by the ” State Legislature …to define and regulate the rights and privileges of the permanent residents of the Jammu and Kashmir ” and such laws in existence on the date of the Agreement.

The implementation of the Agreement by India would have been meaningless without the  constitutional safeguard as in its absence such laws would be prone to legal challenge.

The recognition of “special rights and privileges’ of the people of Jammu, Kashmir and Ladakh by India is integral part of the agreement on citizenship accepted by Jammu and Kashmir and the commitments are intertwined as components of the same agreement.

Neither of the parties  therefore can untie the swirls of the rope and take away swirl of its choice. Taking away “special rights and privileges” of the people of Jammu and Kashmir would end the citizenship as two are interdependent and part of a single deal. The argument that the President while  incorporating Article 35A has bypassed the Parliament and exercised a power that belonged to the Parliament, against above sequence of events is specious. The Parliament in effect gave legislative approval to all the measures including changes in Article 35 by  addition of 35A, necessary to fulfil all  the commitments India made under the Delhi Agreement. 

The Article 35A of Constitution of India therefore is a measure duly approved by the Parliament, towards implementation of treaty obligations by India like Constitution Amendment Act of 2009 Svt. enacted by the Constituent Assembly and cannot be unilaterally abrogated or tinkered with.

(The author is a former judge and Senior Advocate, Supreme Court of India)

Justice Hasnain Masoodi

hasmas786@gmail.com