It is conceded that Article 35 A was not passed by the Parliament as required by Article 368 and consequently is not a part of the Constitution.
The question of it being extended to Jammu and Kashmir even by consent of the state Government cannot arise at all because it was never made a part of the Constitution by acting under Article 368. The Parliament of India cannot empower the state legislature, under a separate Constitution, to make any law. Article 35A is an exercise in futility which was totally unnecessary as the state was ONLY in a confederal relation with India, not even a political federal relation. The Jammu and Kashmir state always had the power to make laws for Jammu and Kashmir including all matters mentioned in Article 35A. This power was never surrendered by the Instrument of Accession.
In this context it is also relevant to highlight the legal significance of Article 5 of the Instrument of Accession which stipulated that the terms of the Instrument of Accession were not to be varied by any amendment of the Act (Government of India Act, 1935 which was an interim Constitution till 1950 and thus also ousted out any question of variation by any future Constitution in terms of Article 7 of the Accession) or the Indian Independence Act, 1947, unless such amendment was accepted by the Maharaja by Instrument supplementary to the Instrument of Accession. In the light of the above, with regard to the relationship between Jammu and Kashmir and India, the inference that can be drawn is that the Instrument of Accession is a treaty that has been concluded between Jammu and Kashmir and India and needs to be governed under the provisions and principles of international law [ ParasDiwan, Kashmir and Indian Union: The Legal Position, 2 (3) International And Comparative Law Quarterly 333, 345, 346 (1953).]. It also implied that any domestic arrangements would not have any effect to legally alter or vary the position of Jammu and Kashmir vis-à-vis India from that specified through the Instrument of Accession. It indicates that any attempt to temper with the existing laws of Jammu and Kashmir would amount to breach of treaty obligation and thus Jammu and Kashmir under Article 60 of the Vienna Convention on the Law of Treaties 1969 can invoke “material breach of a bilateral treaty by one of the parties as a ground for terminating the treaty or suspending its operation in whole or in part”. Also relevant is Article 27 of the Vienna Convention on the Law of Treaties which provides that if a treaty conflicts with a state’s municipal law (including the state’s constitution) the state is still obliged to meet its obligations under the treaty.
This is one dimension of the issue in its wider and true sense. However it requires a separate analysis in the light of changed circumstances that is in the light of doctrine of Clausula Rebus Sic Stantibus.
The second dimension may require looking at the matter in the sequence of time, again.
The Constitution (Application to J&K) Order, 1950 that came into force from 26th January, 1950 was superseded by a Presidential Order of 1954 to implement the Delhi Agreement of 1952. The 1954 Order extended Indian Citizenship to Jammu and Kashmir, Article 35A was added empowering the state legislature to legislate on privileges of permanent residents with reference to immovable property, settlement in the state and employment, among other things. It is conceded that Article 35 A was not passed by the Parliament as required by Article 368 and consequently is not a part of the Constitution. The question of it being extended to Jammu and Kashmir even by consent of the state Government cannot arise at all because it was never made a part of the Constitution by acting under Article 368. The Parliament of India cannot empower the state legislature under a separate Constitution to make any law. Article 35A is an exercise in futility which was totally unnecessary as the state was ONLY in a confederal relation with India, not even a political federal relation. The Jammu and Kashmir state always had the power to make laws for Jammu and Kashmir including all matters mentioned in Article 35A. This power was never surrendered by the Instrument of Accession. India’s competences vis-a-vis Jammu and Kashmir were limited to matters mentioned in the Instrument of Accession which is reflected subsequently through various Instruments. This limitation on the sovereignty of India was accepted by India in an exercise of its own sovereignty. In all the three situations, the competency of any municipal institutions is ousted out, legally speaking, for any dispute over treaty implementation; the municipal courts would have no jurisdiction. Read also in the context of the proviso to Article 131 of the Constitution of India which provides that the Supreme Court shall have no jurisdiction to a dispute arising out of any treaty or agreement having been entered before the commencement of the Constitution and continue to be in operation after such commencement.
It is pertinent to mention that as per the norms of general international law, international law can control the municipal law and not the otherwise. It would therefore be impossible to resist a conclusion that the relationship between India and Jammu and Kashmir are placed on principles of international relations only and are not placed properly or legally under any constitutional provisions. The principles governing international relations will adequately answer the requirements.
(Full version of this article is already published in Kashmir Inc. Sep 2 2018)
(Dr. Irfan Rasool has a Ph.D from NLSIU, Bangalore on “The Legal Implications of the Instrument of Accession: A Case Study with Reference to the Jammu and Kashmir State.”)