Supreme Court is slated to take-up hearing on Article 35, more or less a month hence on August, the 6th 2018. With the state under Governor Raj as per article 92 of J&K state constitution, it means that state is virtually being ruled by a Delhi appointed governor. The governor as such may not be in a position to defend article 35 A, as per peoples’ aspirations. The article concerns the rights of people as state subjects. It was inserted for the first time through a constitutional process based on the recommendations of Jammu and Kashmir State, after being debated in the constituent assembly. The constituent assembly debate was framed on the proposals of drafting committee comprising Syed Mir Qasim, Girdhari Lal Dogra, Ghulam Rasool Renzu, Harbans Singh Azad and DP Dhar. The proposals of the drafting committee were placed before the constituent assembly for approval on February 11, 1954. Subsequently, as required under Article 370 Clause (I) JK Government placed it for Presidential Order after approval by constituent assembly on February 15, 1954. The Presidential Order took affect from May, the 14th 1954. Article 35 A with respect to permanent residents and their rights reads as follows:
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 of 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 it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”.
As noted the right of settlement in the state, acquisition of immovable property, of employment, of right to scholarships and such other forms of aid as the State Government may provide, is reserved for the permanent residents of the state as defined by the law. Article 35 A has been an eyesore for RSS backed formations, taking the plea that it infringes on the rights of Indian citizens with regard to settlement and employment in J&K state. And, there has been a constant effort to challenge it legally in law courts, since legislative process is taken to be an impediment to the designs of RSS affliates. The Apex Court is in the process of hearing Public Interest Litigation (PIL) filed by Delhi based NGO ‘We the Citizens’. The NGO in its plea has sought Article 35A to be declared unconstitutional.
In previous hearings, the state government and GOI have not been on the same page, while defending the rights of the people of the state. GOI has been evasive with Attorney General–K K Venugopal stating that the Centre did not wish to file its affidavit over the subject. Venugopal paraded the reason of matter being “very sensitive” requiring a “larger debate.” BJP led central government was under moral obligation to be on the same wavelength as the state government, given the fact that in the ‘Agenda of Alliance (AoA)’ signed with PDP, BJP had undertaken to preserve the status-quo vis-à-vis the state’s constitution. However, Mahbooba Mufti led state government pocketed the rebuff, as it did much else. BJP had the last laugh, as it pulled the rug under her feet, at a moment of its choosing. Mahbooba was on her desk, without an inkling of what would befall her. With the onset of governor’s rule, defence of article 35 A is seen to be in jeopardy.
The concerns vis-à-vis August 6th hearing are varied. The Supreme Court bench has not as such ordered the J&K State to file a longer affidavit, though the bench did ask why the state has not done so. It is believed that a detailed affidavit was in the process of being prepared. It has not been filed, though prudence would demand that it should have been filed by now. GOI evasiveness remains a matter of worry. In the previous hearing, it had taken a plea that case may be postponed, as an interlocutor had been appointed. How would an interlocutor weigh on the judicial process was left unsaid. Given the fact that Governor cannot afford but to toe the Delhi line, it would be in the fitness of justice that adjudication on the matter be postponed, until the people’s voice is represented by the genuine representatives of the people. Without such a representation, a legal process, adjudication would be a travesty of justice.
Article 35 A providing exclusive rights to the people of J&K state has come into being by a political process based on constitutional format operative between Union of India and J&K State. The constitutional format in itself remains the subject of much debate and contention. Issues raised before the Supreme Court are thus essentially political in nature and courts do not adjudicate on these issues. Such issues are best left to be decided by the people, being the settled mechanism all over the world. Short of it, it may unleash forces, with an outcome, difficult to predict.
Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]
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