On Saturday, August 11, 2018 when at Raj Bavan Lawns Srinagar 300 and odd guests including a large number of legal luminaries from Delhi, put their hands together to celebrate swearing in of Justice Gita Mittal as first woman Chief Justice of Jammu and Kashmir, they must have noticed that her appointment was made by the President in exercise of powers under Section 95 Constitution of Jammu and Kashmir. Justice Vijaya Kamlesh Tahilramani, Justice Kaplesh Satyendra Jhaveri and Justice Aniruddha Bose who almost around the same date took oath as Chief Justices’ of Madras, Orissa and Jharkhand High Courts were so appointed by the President under Article 217 Constitution of India. While Chief Justice Mittal in terms of Section 97 of the Constitution of Jammu and Kashmir made and subscribed to the oath according to the Form set out in the Fifth Schedule of the Constitution , Justice Vijaya Kamlesh and other two Chief Justices as required by Article 219 of the Constitution of India made and subscribed to the oath according to the Form set out in the Third Schedule of the Constitution.
Exactly twelve days later, the President in exercise of powers under Section 27 of the Constitution of Jammu and Kashmir appointed Shri Satya Pal Malik as Governor of Jammu and Kashmir and the Governor designate made and subscribed oath in the Form laid down under Section 31 of the Constitution. Lal Ji Tandon, Baby Rani Maurya and four other Governors appointed on same date were appointed under Article 155 Constitution of India. They made and subscribed oath in the Form given in Article 159 of the Constitution.
It follows that Constitution of Jammu and Kashmir, a red rag to the froth-on-mouth television anchors, is a live document, as sacrosanct as the Constitution of India. Both the Constitutions are fundamental law, operate within their own spheres and neither of them is subordinate to other. The panellists on prime time shows, therefore have no reason to fret and fume, when told that Jammu and Kashmir is different from other States in as much as it unlike other States enjoys special status under the constitutional mechanism evolved to govern its relations with the Union of India. There, though cannot be denial of the fact that successive State governments over the years have facilitated shrinking the sphere of Constitution of Jammu and Kashmir and widening the sphere of Constitution of India as applicable to the State. The previous government in 1100 and odd days of its rule has done more damage to autonomy than what has been done in last 11000 days.
The campaign to dilute autonomy began almost the moment the Constitutional mechanism guaranteeing it was put in place. The politicians on either side of the political divide have been and are on the same page when it comes to denuding Jammu and Kashmir of its constitutionally guaranteed sovereignty. To accomplish the design both State and non-State actors have been pressed into service and made to play a trouble triggering role. The recent, in this campaign is attack on Article 35-A of the Constitution of India as applied to Jammu and Kashmir by Presidential Order of May 14, 1954. To understand the context of present controversy we may have to go to the background facts.
Why Jammu and Kashmir should have the special status not available to other States, is the oft repeated question asked by students of constitutional law. Jammu and Kashmir at the end of British Empire in India and lapse of Paramountcy on August 15, 1947 became free from all the Treaty obligations and attained absolute sovereign and independent status. It continued to be independent till its Ruler faced with a strong and popular freedom movement questioning very legality of his Rule, reluctantly acceded to Dominion of India on October 26, 1947. The Government of India, not convinced with moral authority of the Ruler to take such an important decision touching lives of millions of people and satisfied that even tacit support of the Party leading freedom struggle would not impart legitimacy to the accession, made acceptance of accession conditional and subject to referendum. The letter addressed by the Governor General of India to the Ruler on October 27, 1947 insisting on referendum was not a private communication but integral part of accession correspondence. The fact that the communication was official and acceptance of accession was conditional and subject to plebiscite gets substantiated by utterances of key stakeholders immediately after accession and importantly para 6 of the complaint lodged by Government of India with UNSC wherein the stand was reiterated. It, thereafter, got reflected in UNSC and UNCIP Resolutions.
When the Government of India on January 27, 1948 made a categorical statement on floor of UNSC that ” the accession should finally be settled by plebiscite” and agreed to appointment of the Plebiscite Officer and procedure to be followed for the promised plebiscite, the Constitution making process by the Constituent Assembly of India was in progress. It became necessary for the Constituent Assembly to work out a constitutional mechanism in consultation with Jammu and Kashmir Government and its representatives in the Constituent Assembly that would govern the relations between Dominion of India and Jammu and Kashmir till the plebiscite was held. Back in Jammu and Kashmir the Ruler who had earlier made it clear in paragraph 7 of the Instrument of Accession that accession would not obligate him to accept any future Constitution of India, on March 5, 1948 announced convening of a National Assembly to frame Constitution of Jammu and Kashmir and gave broad features of proposed Constitution. Jammu and Kashmir even after accession continued to follow Jammu and Kashmir Constitution Act 1939 whereas other States were run in accordance with Government of India Act 1935. While all the States on or around November 25. 1949 accepted Constitution of India, Jammu and Kashmir was the only exception. It had decided to make a Constitution of its own.
Jammu and Kashmir against above backdrop was the only State to negotiate terms of its relationship with the Dominion of India. The Constitutional mechanism agreed upon by the parties got incorporated in Article 370 of the Constitution of India made applicable to the State. In case of other States entire Constitution came into force on said date itself. While in terms of Article 1 territory of India comprises of territories of the States including territories of Jammu and Kashmir, Article 370 inter alia lays down mechanism for application of other Constitutional provisions to the State. Jammu and Kashmir therefore got absolute autonomy in all matters except the three subjects on which it acceded to the Dominion of India. Who better than Shri Gopalaswami Ayyangar who introduced the draft clause 306A later incorporated as Article 370, can tell people of India reasons for guaranteeing autonomy to Jammu and Kashmir. Shri Ayyar amongst special circumstances in which autonomy was guaranteed, counted ” commitments made by the Government of India to the people of Jammu and Kashmir that an opportunity would be given to the people of the State to decide for themselves whether they would remain with India or wish to go out of it” and a “commitment to ascertain will of the people by means of a plebiscite” as the reasons for grant of special status.
The Constituent Assembly unanimously passed draft Article 306 A. The only amendments suggested by Shri Mahavir Tayagi were not moved. Even S.P. Mukerjee who a few months later became its bitter critic and laid foundation of Jan Sangh did not oppose the draft Article. Article 370 was incorporated in Constitution and for obvious reasons put in the Chapter titled “Temporary and Transitional Provisions” as its fate would depend on outcome of promised plebiscite. The grant of special status to Jammu and Kashmir therefore is not accidental or outcome of deceit. It is a sacred pledge made by people of India through their Constituent Assembly to the people of Jammu and Kashmir. The object of special status was twofold- to provide a governance mechanism till plebiscite was held and to showcase the autonomy India would guarantee people of Jammu and Kashmir in the event they voted for India in the proposed referendum.
What is the ambit and extent of autonomy or special status? The power of the Parliament to make laws for State is limited to such matters in the Union List and Concurrent List which in consultation with the Government of State are declared by the President to correspond to subjects specified in the Instrument of Accession and to such other matters the President may with concurrence of State Government by order specify. Further only the provisions of Article 1 and Article 370 apply in relation to Jammu and Kashmir. The President may by order apply other provisions of the Constitution of India to the State with the ” exceptions and modifications” as the President may specify in the order. However if such provision relates to the matters specified in the subjects of the Instrument of Accession, the President shall have to consult the State Government before applying the provision and if the provision falls outside the subjects of accession the concurrence of State Government would be necessary. ” Consultation”, ” Concurrence” and “Exceptions and Modifications” therefore are key expressions in the autonomy discourse. The President under Article 370 is clothed with power not only to apply a provision of the Constitution of India to the State subject to fulfilment of “consultation” or “concurrence” condition but to apply it with ” exceptions and modifications” the President may specify. It follows that a provision applied to the State may have contents different from its contents as applicable to other States. Furthermore if the provision applied is later amended by the Parliament, the amendment shall not ipso facto apply to the State but shall have follow Article 370 route.
The President on May 14, 1954 by an Order amongst other provisions, applied Article 35 with ” modifications” to the State. The Presidential Order thereafter added Article 35A. Sub clause(j) Clause (4) of 1954 Order reads:
(j) After Article 35, the following new Article shall be added, namely___
“35A, Saving of law with respect to permanent residents and their rights:
The provision protects laws existing on the date of the Order and future laws, defining permanent residents and conferring benefits on permanent residents in the matters of acquisition of property, employment etc and provides that these laws would not be void on the ground these are inconsistent with fundamental rights guaranteed under Part III of the Constitution. Article 35-A per se is not against a gender, community, region or religion.
The controversy raised in various petitions before the Apex Court is that President’s power to apply with “exceptions and modifications” provisions of the Constitution of India to the State would not include power to add a new provision but would be limited to introducing “exceptions and modifications” in an existing provision. It is argued that President lacked power to add Article 35-A and therefore the provision is unconstitutional and liable to be so declared and quashed. Once protective cover provided by Article 35-A is gone all the laws defining or conferring benefits on permanent residents of Jammu and Kashmir would be exposed to challenge on the ground of inconsistency with fundamental rights, Article 370 would loose its meaning and Jammu, Kashmir would be denuded of last remnants of autonomy.
The challenge to Article 35A, however, is destined to fail as history, law, logic and morality are to side with people of Jammu and Kashmir.
(The Author is a Former Judge of the High Court and Senior Advocate Supreme Court of India)