The next hearing on Article 35 A in Supreme Court is slated on 19th January. Some informed legal circles related to Bar Council in Srinagar say that so far, it has not been listed on the due date—the 19th of January. However, supplementary lists do appear, and the hearing might fall of the appointed date. 19th or later, the case is bound to heard in near future. And, with it, the concerns heighten in the state, with the worry beads out in hands that remain deeply concerned with various aspects of the case. It is not only the legal aspect that concerns the masses in the state, but the prevailing political panorama as well. As is often said, judges are not beyond getting affected by the prevailing circumstances. It may be noted with regret that prevailing circumstances have ample shades of influencingthe legal merits of the case.
Recounting the legal merits for a quick reprisal, Article 35A formed a part of Presidential Order of May, the 14th 1954. The Presidential Order followed the recommendation of Jammu and Kashmir State Government, based on the formulation of draft committee of J&K constituent assembly. The draft committee was constituted by following members: Girdhari Lal Dogra, DP Dhar, Syed Mir Qasim, Gh. Rasool Renzu and Harbans Singh Azad. The formulation of draft committeewas placed in the assembly on February the 11th 1954. It was approved by constituent assembly on February the 15th 1954. Subsequently, J&K Government placed the recommendation for Presidential Order, as per the provisions of Article 370 (1) (d). The constitutional provision states:
(1) Notwithstanding anything contained in this Constitution,—
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
Article 370 acts as a bridge for constitutional relationship between J&K State and Union of India. Except for the matters specified in the accession, such as foreign affairs, defence and communication, which fall within the purview of Indian parliament, all other constitutional application, as and when applied to J&K State are routed throughArticle 370 (1) (d).
The parties contesting the application of Article 35 A to J&K State base their claim on absence of parliamentary process in its application, where as it apparent that parliament has no role. The parliamentary process as noted in Indian constitution pertains to article 368 of the Indian constitution. The said article relates to Power of Parliament to amend the Constitution and procedure therefor. In the Presidential Order of May, the 14th 1954, apart from Article 35 A, a series of constitutional applications are noted, with amendments recommended by J&K Government. One such application pertains to article 368. Part XX of the Presidential Order of May, the 14th 1954, reads: To Article 368, the following proviso shall be added, namely—–’Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by the order of the President under clause (1) of Article 370′. It makes it amply clear that parliamentary scrutiny of Article 35 or any other constitutional application routed through Article 370 (1) (d) is not a constitutional requirement.
Article 35A of the Indian constitution confers onpermanent residents’ right to acquire immovable property, employment under the State Government and right to scholarships and such other forms of aid as the State Government may provide. It falls on state legislature to define the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir. Indian constitutional provision pertaining exclusively to state of Jammu and Kashmir is taken as an affront to Indian citizens by right wing elements–Arun Jaitley and his ilk. Exception was taken to the exclusive rights conferred by Article 35A on permanent residents’ of J&K State. The rumblings started approximately a year before BJP Government assumed power in Delhi in 2014.
Subsequent to the parliamentary poll, assembly elections were held in J&K state in 2014. The fractured mandate had PDP emerge as the largest single party. PDP had campaigned on anti BJP plank, prompting many in the state to vote, not normally disposed to participate in electoral process. In a somersault bordering on ingratitude to those who had voted for the party, PDP combined with BJP to form a coalition. To solemnise the combine, PDPs Haseeb Drabu weaved an ‘Agenda of Alliance (AoA’ with Ram Madhav of BJP. It promised to leave the constitutional arrangement between Union of India and State of Jammu and Kashmir undisturbed. In practice, AoA was not worth the paper, it was written on. BJP leadership and cadres could be heard challenging, whatever the measure of the special status the state enjoyed. Right wing organizations sympathetic to Sangh Parivar launched legal challenges to article 35 A. PDP was meek in response. It stuck to the alliance, until it was swept aside.
The challenge to 35 A continues, next test is slated on 19thJanuary. It might come on the appointed day or a shade later. Only the collective will of the people can withhold the ominous.
Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]
iqbal.javid46@gmail.com