May This Fly For Ever

No tinkering with the Article 35A
May This Fly For Ever
Representational Pic

The headlines in media scream of possible tinkering with theArticle 35A Constitution of India. Reports suggest an end to the rights andprivileges, the Permanent Residents of Jammu and Kashmir enjoy in the mattersof acquisition of immovable property, employment, scholarships etc – symbol ofautonomy guaranteed  to the people ofJammu, Kashmir and Ladakh. The latest is Times of India news item datedFebruary 24 reporting that the "government is… considering the option ofpromulgating an ordinance to scrap the provision which is key to the enduranceof the "special status" provided to the State through Article 370 ofthe Constitution." Is such a course permissible? The question makes usrevisit the background  in which Article35A was incorporated  by the PresidentialOrder, 1954.

S.M. Abdullah, the Prime Minster of Jammu and Kashmir in hisfirst address to the Constituent Assembly on 5th November 1951 informed theAssembly that one of the important tasks before it was to decide which of thethree "alternatives" – accession to India, accession to Pakistan or an independent status, theJammu and Kashmir was to follow.

 The Prime Ministerwhile reminding the Assembly that it was to accord "fullconsideration" to "three alternatives" and "declare itsreasoned conclusion regarding accession" invoked mercy of  God  tolead it "forward on the right path." This was not for the first andlast time that the Prime Minister asserted the sovereignty of Jammu and Kashmirnotwithstanding the  Accession – madeconditional  by the Ruler andconditionally accepted by Government of India. He on 7th October 1948 wrote toSardar Patel, Home Minister of India "with the taking over of the Stateforces by the Indian Government, it was agreed that steps would be taken toreorganise and rebuild our army so that when the present emergency is over andthe Indian forces are withdrawn, the State will be left with a proper organisedarmy of its own to fall back upon".

The stand was reiterated even more forcefully on August19,1952 by categorically stating in the Assembly that  though asked to sign the Constitution ofIndia, "they" (Regent-in- Council) did not agree as Jammu and Kashmirwas different from other States and all powers except three subjects were toremain "in our hands" and that "under the provisions of International Agreement we can severe ourrelations with India even today if we wish to do so.

This right is given to our State and not others." Thesestatements were not rebutted by New Delhi, rather reinforced by utterances ofIndian Prime Minister within and outside Parliament and by Indian stand beforeUnited Nations. What else must one gather from 15th January, 1948 statement ofMr Iyenger before UN that "whether Kashmir should withdraw from heraccession to India and either accedes to India or remains independent with aright to claim admission as a member of UNO, all this we have recognised to bea matter of unfettered decision by the people of Jammu and Kashmir." Boththe sides impliedly agreed that Instrument of Accession was signed only to meetan emergency, to legitimise deployment of Indian troops to Jammu and Kashmirand not to create any permanent relationship and that such a relationship couldbe created only by the people of Jammu and Kashmir through a free and impartialreferendum.

Jammu and Kashmir therefore notwithstanding Accession by itsRuler continued to enjoy sovereign status. The conditional Instrument ofAccession and its conditional acceptance at the most created a commitment thatjoining India would be one of the options in the promised referendum. Close onheels of the  Prime Minister Abdullah'scall to Constituent Assembly to decide on one of the three alternatives in adispassionate and reasoned manner, came the report of Basic Principles Committee headed by the Prime Minister.

The report recommended the fundamental principles that wereto edifice  the polity. The PrimeMinister on 7th June 1952 moving a resolution for adoption of "NationalFlag" of Jammu and Kashmir said "every nation of world has its aspirations,ambitions,  desires, aims and objects.Similarly the four million people of Kashmir have their own aspirations,ambitions and desires…." As the Flag was adopted and unfurled in thegallery, all the members – Kaushak Bakola, Krishen Dev Sethi, Girdhari LalDogra, Sardar Kulbir Singh, amongst them, rose and with tears in their eyessang the National song  "May thisfly for ever."

The Basic Principles Committee report adopted on 12th June1952 recommended a democratic constitution, termination of the hereditary Ruleand elected Head of the State. Jammu and Kashmir was asserting its sovereignty.New Delhi keen to have clarity on issues like Citizenship, the Headship of theState etc pending promised referendum, invited Kashmir leadership to Delhi for talkson these matters. A delegation led by Beg Saheb visited New Delhi fordiscussion. The Prime Minister, alive to the importance of the deliberations,also joined the talks.

The discussions culminated in Delhi Agreement inked on 24th July 1952. The areas covered under the Agreement included Citizenship, National Flag, Residuary Powers and Headship of the State. Let us first examine legal character of Delhi Agreement 1952. Jammu and Kashmir, even after the 27th October 1947 retained its sovereignty. It followed its own Constitution – Jammu and Kashmir Constitution Act 1996 Svt (1939 AD), had  Head of the State assisted by Prime Minister    with Council of Ministers.

The Agreement was therefore entered into by two States. This is the reason that once the Agreement was arrived at, the two Prime Ministers tabled it in their legislatures and laid motion for its  approval by Parliament and Constituent Assembly respectively. The Prime Minister placed the  Agreement before the Constituent Assembly on 11th August 1952 and the House after marathon debate involving almost all important members passed the resolution moved by the Prime Minister and put seal of approval on the Agreement on 19th August1952.

The Prime Minister of India likewise placed the Agreement before the Parliament on 5th August 1952. While dilating on various aspects of Delhi Agreement, the Prime Minister reminded the Parliament that  "Jammu and Kashmir should be treated in a somewhat different way from that of other States in India…..that agreements that have been arrived at….are satisfactory from the point of view ..of India ..as well as…Jammu and Kashmir..". Exhorting the House to approve the Agreement, the Prime Minister referred to role of United Nations and " the pledges we (India) have made'.

The Agreement was therefore entered into by two States. This is the reason that once the Agreement was arrived at, the two Prime Ministers tabled it in their legislatures and laid motion for its  approval by Parliament and Constituent Assembly respectively. The Prime Minister placed the  Agreement before the Constituent Assembly on 11th August 1952 and the House after marathon debate involving almost all important members passed the resolution moved by the Prime Minister and put seal of approval on the Agreement on 19th August1952.

The Prime Minister of India likewise placed the Agreement before the Parliament on 5th August 1952. While dilating on various aspects of Delhi Agreement, the Prime Minister reminded the Parliament that  "Jammu and Kashmir should be treated in a somewhat different way from that of other States in India…..that agreements that have been arrived at….are satisfactory from the point of view ..of India ..as well as…Jammu and Kashmir..". Exhorting the House to approve the Agreement, the Prime Minister referred to role of United Nations and " the pledges we (India) have made'.

 The motion moved inthe name of Prime Minister evoked vigorous debate and was finally adopted on5th August, 1952 and the agreement approved. The Agreement was entered into andratified when the Constituent Assembly was yet to take a call on the question ofaccession or independent status. The Delhi Agreement 1952,  therefore is not in the nature of  secret understanding, but an agreementbetween two sovereigns – Regent  inCouncil – repository of all executive, legislative and judicial power and theGovernment of India and ratified by the two legislatures. The  Agreement, in the circumstances, has  flavour and characteristics of a treaty oragreement binding on the parties and the successor governments. Now a look atpart of  the Agreement relevant to presentdiscussion.    

Let us be reminded that the Presidential Order of 1950   did not make Part II of the Indian Constitution dealing with Citizenship applicable to the State. It is equally important to note that Jammu and Kashmir after 27th October 1947 continued to be governed by Jammu and Kashmir Constitution Act 1996 Svt, and not by Government of India Act 1935 as was the case with other States acceding to India.

The Constitution Act of 1996 Svt. read with Notification of 20th April 1927 defining the State Subject, governed the citizenship law in Jammu and Kashmir and the people of Jammu and Kashmir even after 27th October 1947  continued to be citizens of Jammu and Kashmir with a different nomenclature though. The question of citizenship obviously was a matter of concern for New Delhi and on the top of the list.

The Prime Minister thus announced the Agreement oncitizenship  : "It was agreed thatin accordance with Article 5 of the Indian Constitution persons who have theirdomicile in the Jammu and Kashmir State shall be the citizens of India. It wasfurther agreed that the State Legislature shall have power to define andregulate the rights and privileges of the permanent residents of the State,more especially in regard to acquisition of immovable property, appointment toservices and like matters."

The agreement, the Prime Minister Abdullah announced, also provided for return of those permanent residents who left State in connection with disturbances of 1947 and were to be given citizenship. The Prime Minister deliberating on the historical background of "special rights and privileges" remarked "I am glad  to say that the Government of India appreciated the need for such a safeguard."

The Prime Minister of India likewise apprising the Parliament, of the agreement on citizenship and  special rights and privileges to the people of Jammu and Kashmir told Parliament that  " it was perfectly justifiable feeling on their part, and that acquisition of property in Kashmir State should be protected on behalf of the people there……. we agreed to this."

The Agreement entered into by two states and ratified by their legislatures cast an obligation on the parties to make necessary changes and modifications in  respective Constitutions.

The Constitution of Jammu and Kashmir was in making  when Delhi Agreement was clinched and towards  implementation  of one of the parts of the Agreement, the Constituent Assembly on 12th November, 1952 amended the J&K Constitution Act 1996 (1939 AD) by the Constitution (Amendment) Act, 2009. The Government of India likewise  brought changes and modifications in its Constitution as applicable to Jammu and Kashmir by Constitutional Order of 1954.

One of the changes and modifications  made in connection with implementation of  Delhi Agreement in Constitution of India in its application to Jammu and Kashmir was introduction of 35 A to the Indian Constitution. The modification was to implement the part of the Agreement that the "State Legislature shall have power to define and regulate the rights and privileges of the permanent residents of Jammu and Kashmir.." The Article was intended to provide protective cover to the law made by the " State Legislature …to define and regulate the rights and privileges of the permanent residents of the Jammu and Kashmir " and such laws in existence on the date of the Agreement.

The implementation of the Agreement by India would have been meaningless without the  constitutional safeguard as in its absence such laws would be prone to legal challenge.

The recognition of "special rights and privileges' of the people of Jammu, Kashmir and Ladakh by India is integral part of the agreement on citizenship accepted by Jammu and Kashmir and the commitments are intertwined as components of the same agreement.

Neither of the parties  therefore can untie the swirls of the rope and take away swirl of its choice. Taking away "special rights and privileges" of the people of Jammu and Kashmir would end the citizenship as two are interdependent and part of a single deal. The argument that the President while  incorporating Article 35A has bypassed the Parliament and exercised a power that belonged to the Parliament, against above sequence of events is specious. The Parliament in effect gave legislative approval to all the measures including changes in Article 35 by  addition of 35A, necessary to fulfil all  the commitments India made under the Delhi Agreement. 

The Article 35A of Constitution of India therefore is ameasure duly approved by the Parliament, towards implementation of treatyobligations by India like Constitution Amendment Act of 2009 Svt. enacted bythe Constituent Assembly and cannot be unilaterally abrogated or tinkered with.

(The author is a former judge and Senior Advocate, SupremeCourt of India)

Justice Hasnain Masoodi

hasmas786@gmail.com

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