Before finalizing any viewpoint on Article 35-A, in an atmosphere of ubiquitous electronic media where ‘political narratives’ multiply like nuclear fission reactions, it is significant for the rational thinkers of the Jammu & Kashmir state to imbibe the thorough understanding of the historical, political and constitutional perspective of Articles 35-A & 370 (as 35-A can’t be read and understood in isolation, as currently is being propagated). The issue is not about one’s nationalism and/or patriotism towards Union of India rather about ‘unique & special identity’ of Jammu & Kashmir, within the framework of Indian Constitution. Even while addressing the issue, the state subjects of Jammu & Kashmir shall adopt a unison approach and shall not create a regional divide within the region, be it political, religious or otherwise.
Situationally Precarious therefore considered Special:
After Indian independence, unlike other princely states ruler of Jammu and Kashmir was undecided, as to accede, with either Pakistan, India or to remain an independent entity. But the mass infiltration of tribesmen with an imminent threat to the state, made Maharaja Hari Singh,(the then Ruler) to execute instrument of accession on 26 .10.1947 subject to certain conditions, which was accepted by then Governor General of India. What is relevant in the instrument of accession is the clarity with that the sovereignty remained with Jammu and Kashmir as reflected in clauses 7 & 8 of instrument of accession. Clause 7 specifically states “Nothing in this instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the governments with the government of India under any such future constitution “. Further as per clause 8 of Instrument of Accession “Nothing in this instrument affects the continuance of my sovereignty in and over this state or save as provided by or under this Instrument , the exercise or any powers , authority , and rights now enjoyed by me as ruler of this state or the validity of any law at present in force in this state “. Under this background and the prevailing situation(as at that time it was) and pendency before United Nations (as initiated by Union of Indian), it was discussed and deliberated under Draft Article 306-A (Current article 370), that Instrument of Accession shall be the basis for relationship of Jammu & Kashmir with Republic of India and any further relationship with respect to the application of Constitution of India shall be on the basis of recommendations of ‘Constituent Assembly of the State’, that was to be form in the State for the purpose of framing its own constitution. Therefore unlike other states amalgamated within Republic of India, Article 238 (draft article 211) of the Constitution of India was not made applicable to Jammu & Kashmir. However, Instrument of Accession with Jammu & Kashmir stands the basis which formed the genesis for Article 370 to accrue the state a ‘special status’ within the Constitution of India.
The Constitution (Application to Jammu & Kashmir) Order 1950, was issued by President of India and related to the subjects already specified and entitled in the Instrument Of Accession. The law making domain of Parliament of India under this order was limited to specific subjects viz. Defense, Preventive detention (in relation to Defense & Foreign affairs of India only), Foreign affairs, communication, trade and commerce with foreign countries, union executive, and Supreme Court along with some other limited entries. By this order some other provisions and entries of the Constitution of India were made applicable and extended to the state apart from Article 1 and Article 370.
Further Article 368 of the Constitution of India which deals with the procedure of amending the constitution was made applicable to the State of Jammu and Kashmir but with proviso which says ” … no such amendment shall have effect in relation of Jammu & Kashmir unless applied by order of the President under clause 1 of article 370…”. Under this unique feature which was incorporated in the Constitution of India keeping in view the extraordinary circumstances of the times, President of India, can pass an order only in consultation with State of Jammu & Kashmir. Through Article 370 and further vide Presidential Order of 1950, Dominion of India gave a ‘Constitutional backing’ to a legal & political promise by prioritizing the importance of the ‘will of the people’ of Jammu & Kashmir.
J&K Constituent Assembly & Protection of State Subjects:
The constituent assembly was formed as per article 370 of Constitution of India, the basic decision taken by the committee were, democratic political set up for the state, transfer of hereditary ruler-ship to Sadr –E –Riyasat (elected head of the state), interests of state subjects, own flag of the state, and further for drafting the constitution of the state. Accordingly, a drafting committee was set up. The important decision taken by the constituent assembly received concurrence from Government of India under Delhi Agreement 1952. Under Delhi Agreement it was agreed upon that sovereignty in all the matters, except those specified in instrument of accession shall remain with the State only and unlike other states residuary powers of legislature shall be with the State itself.
The relevance and importance of state subjects was also recognized and agreed upon with the Government of India and further there was a complete agreement that Sadr-e-Riyasat was to be elected by the state legislature which had to be recognized by President of India, which position was altered later on.
Protection of property and employment rights of the ‘state subjects’ was central to the objectives of the drafting committee, and if the present day political parties turn the pages of history they will realize, when the people of Jammu & Kashmir in late twenties agitated for the protection of their bonafide rights against the competing interests of the economically affluent non-residents of the state, Maharaja vide Notification no. I-L/84 dated 20.04.1927 and Notification No. 13-L/1989 dated 27.06.1932 sanctioned the term ‘state subjects’ with only purpose to secure the property, employment, scholarship and settlement interests of His subjects.
The Contribution of members of the constituent assembly, which include visionaries like Sheikh Mohammad Abdullah, Baksi Ghulam Mohammad, Pandit Girdhari Lal Dogra, Kh. Ghulam Ahmad Mir, Pandit Bhagat Ram, Smt. Ishar Devi Maini, Smt. Ram Devi along with other 68 members who represented every region and section of Jammu and Kashmir, addressed the peculiar situation, sentiments and interests of the State Subjects in the Constituent Assembly and recommended for addition of new article 35-A along with other additions, exceptions and modifications with respect to the other provisions of the Constitution of India for its application to the state of Jammu and Kashmir. Vide notification dated 14.05.1954, the Constitution (Application to Jammu and Kashmir) order 1954 was passed by the President of India in exercise of powers conferred by Article 370(1), which determined the applicability of the provisions of the Constitution of India (from preamble to parts, lists and schedules) to the State of Jammu and Kashmir. The historical lineage of the ‘state subjects’ of Jammu and Kashmir got constitutional permanence vide article 35-A. Academically non-residents of the state may consider this special provision as violation of equality but constitutionally this provision was incorporated to safeguard the interests of the permanent residents of the state from vested interests & exploitation, as addressed by constituent assembly of Jammu And Kashmir.
The notion raised in current litigations referring 35-A as discriminatory to the rights of women is misconceived, as has been held in the case of State of Jammu and Kashmir v. Sushila Sawhney, the full bench of Jammu and Kashmir High Court held that “the daughter of permanent resident of the state marrying a non-permanent resident will not lose the status of permanent resident of Jammu and Kashmir.” The legal and constitutional positions cannot be altered with the change in central leaderships as Article 35-A cannot be read in isolation and it has to be interpreted along with the objectives of sections 6 to 10 of the Constitution of Jammu and Kashmir, 1957. The state legislature has the power under Section 9 to define, alter, regulate, modify and to confer any special rights and privileges to the permanent residents. This comes under the legislative domain which is outside the purview of judiciary and highest constitutional Court of India had earlier refrained to enter into such domain.
A misleading and provocative arguments are being planted in the public domain that 35-A is incorporated without passing the route of Article 368 (Amendment) of the Constitution of India, with the sole purpose to trivialize the constitutional relationship of State of Jammu and Kashmir with Union of India. Whereas, the constitutional position is that Article 370 is a self-applying Article and applies ex proprio vigore i.e it is not dependent on any other article of Constitution of India for its enforceability. Article 370 is a constitutional bridge vide which State of Jammu and Kashmir became the integral part of India keeping its sovereignty intact, thereby granting a pure federal status (relation ) with the Center unlike other states whose relation with the center is quasi federal.
Five Judge Bench of the Supreme Court in Puranlal Lakhanpal v. President of India and Ors. held that ‘ under article 370(1) The President Of India may apply the provisions of constitution of India to the State of Jammu and Kashmir with such modification and exceptions as he may by order specify means that he may vary (i.e amend ) the provisions of the constitution of India in its application to the State of Jammu and Kashmir.’ Further in Bachan Lal Kalgotra v. State of Jammu and Kashmir And Ors supreme court while dealing with the grievance of persons migrating from West Pakistan to the State of Jammu and Kashmir and considering the peculiar constitutional position held that it is for the State legislature to deal with the issue with appropriate legislation.
It is further clarified that the ‘temporary nature’ of the Article 370 was merely because the power to finalise the constitutional relationship between State of J&K and Union of India was given to Constitutional Assembly of J&K and now after six decades it has attained permanence.
The proponents of jingoism who are habitual of questioning the patriotism of Kashmiris have somehow succeeded in creating a divide in the society and our present generation has forgotten the wisdom of their forefathers who came along, worked for the common interests of the natives of State of Jammu and Kashmir, and recommended the special provisions for the State of Jammu and Kashmir. The golden words of Pt. Girdahri Lal Dogra from the pulpits of Constitution Assembly in the context of State-Subjects are apt to mention here, “It is an irony of fate the gentleman who was the first to make a demand for such law in our state and raised his voice for it, today, his own son oppose his slogan. It was because the gentle man had the interest of the people of the state dear to him that he raised the demand, but his son has no such love for the interest of local people”.
Keeping aside the politics and imminent political interests, optimism in us is still dreaming for a day, when all three regions of J&K, will work and act in united voice for the best interest of State of Jammu & Kashmir.
{About Authors: (i) Rahul Sharma is an Advocate on Record in Supreme Court of India and can be reached at adv.rahulsharma24@gmail.com, (2) Uzma Ashraf is a practicing advocate in the Supreme Court of India and can be reached at uzmaashrafju@gmail.com }
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