Article 35A touches a raw nerve

A petition filed in 2014 by an NGO, We the Citizens, believed to be an RSS think-tank, challenges Article 35A, which guarantees special rights and privileges to permanent residents of Jammu and Kashmir. The Supreme Court has to consider whether it goes against the basic structure of the Constitution.

The jurisprudence of laws is located in time and space. Laws have their own universe and operate in matter not in vacuum. In Jammu and Kashmir, the immovable property of a state resident can’t be permitted to be transferred to a non-state resident. This legal and constitutional protection is inherent for the residents of the state and this fundamental and basic inherent right cannot be taken away in view of the peculiar and special constitutional position occupied by J&K. Article 35A is a clarificatory provision to clear the issue of constitutional position as observed in the rest of country in contrast to J&K.

The state legislature has the power to define and regulate the rights and privileges of the permanent residents of the state, more especially in regard to the acquisition of immovable property, appointments to services and like matters.

Parliament has no power to legislate law about the subject’s administration of justice, the land and the other immovable properties, etc. Article 35A not only recognises but clarifies the already existing constitutional and legal position and does not extend something new to the state of J&K. This article, on its own, does not give anything new to the state. Article 14 of the Constitution of India, made applicable to J&K, thus, gave equal protection of laws to the state subjects/citizens as a class apart. Similarly, article 19(1) (f) of the Constitution of India, which is applicable to J&K, and till date continues to be in force in the state, recognises the right to own, hold and dispose of property, which is inherent to the state’s citizens, who stand defined in terms of ‘Orders of His Highness’ and the Constitution of Jammu and Kashmir.

The Constitution (Application to J&K) Order, 1954, was issued by the President under Article 370 with the advice of the Union Government. It was enacted subsequent to the ‘1952 Delhi Agreement’, which dealt with the extension of Indian citizenship to J&K “state subjects”.

The state is empowered, both in the Instrument of Accession and Article 370 to decree exceptions to any extension of the Indian Constitution to the state, other than in the matter of ceded three subjects. So Article 35A is an exception allowed by the Article 370, clause (1) (d).

Article 35A protects the demographic status of J&K in its prescribed constitutional form. People of the state are apprehensive that any move to abrogate Article 35A would open the gates for a demographic transformation of the state in general and the Kashmir Valley in particular. Kashmiris of all socio-political hues argue and say that the state’s autonomy has been gradually eroded by various governments in Delhi through misuse of the provisions of Article 370. Therefore, Kashmiris have come to regard the rights of permanent settlement as the only remaining piece of any meaningful autonomy.

Article 35A was added to the Constitution by the executive head without any discussion and approval in Parliament; hence questions have been raised about the manner of its enactment.

The petitioners have challenged the incorporation of Article 35A on grounds of constitutional incongruity as it goes against fundamental constitutional equality. They claim that Article 35A is the heart of special provisions granted to J&K state under Article 370 that bars acquiring property by those who are not subjects.

Article 35A was not added to the Constitution by following the procedure prescribed for amendment of the Constitution of India under Article 368. Article 370 does not anywhere confer on the President legislative or executive powers so vast that he can amend the Constitution or perform the function of Parliament. It has been brought about by the executive organ when actually the right of amendment of the Constitution lies with the legislative organ. Therefore, it is, allegedly, ultra vires the basic structure of the Constitution since it violates the constitutional procedures established by law.

Besides carrying out many modifications and changes, this order “added” a new article (35A) to the Constitution of India. Addition or deletion of an article amounted to an amendment to the Constitution which could be done only by Parliament as per procedure laid down in Article 368. But, Article 35A was never presented before Parliament. This meant the President had bypassed Parliament in this order to add Article 35A.

The core challenge is on the following:

1 It facilitates the violation of the right of women to “marry a man of their choice” by not giving the heirs right to property, if the woman marries a man who is not a permanent resident. Her children are not given Permanent Resident Certificate and thereby considering them unfit for inheritance — not given right to such woman’s property even if she is a permanent resident.

2  It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like SC and ST people who have lived there for generations. The Valmikis who were brought to the state in 1957 were given Permanent Resident Certificates on the condition that they and their future generations could stay in the state only if they continued to be safai karmacharis (scavengers). And even after six decades, their children are safai karmacharis and they have been denied the right to quit scavenging.

3 The industrial sector and private sector suffer due to the property ownership restrictions. Good doctors don’t come to the state for the same reason.

4 Children of non-state subjects do not get admission to state colleges.

5 It ruins the status of West Pakistani refugees. Being citizens of India they are not only stateless persons, but being non-permanent residents of J&K, they cannot enjoy the basic rights and privileges as being enjoyed by permanent residents of the state.

6 It gives a free hand to the state and politicians to discriminate between citizens of India, on an unfair basis and give preferential treatment to some by trampling over others, since the non-residents of the state are debarred from buying properties, getting a state job or voting in the local elections.

Fearing the large-scale protests by people of the state particularly the Valley and sizeable parts of other two regions both the Central and the state governments are dithering about taking a legally correct stand in defence of the provision before the apex court. The request for adjournment made by attorney-general and state’s counsel reflected flip-flop tactic.

As far as the legal arguments against the article are concerned, they are groundless and not tenable. No objections have been raised over various articles in the Constitution that similarly provide special rights to other Indian states. Since Article 370 was enacted on November 26, 1949, as part of the Constitution of India by the Constituent Assembly of India which was a sovereign body, Article 35A “flows inexorably” from it, is the view strongly held by eminent legal eagles. The core legal issue is whether Article 35A violates the basic structure of the Constitution or not. The Chief Justice of India has observed that the issue needs to be examined first by three-judge bench and later, if found appropriate, by the Constitution Bench. Let the nation wait for the authoritative pronouncement on the core legal issue by the Supreme Court.

(Ashok Bhan is a senior Supreme Court lawyer and Chairman Kashmir Policy and Strategy Group. He can be reached at ashokbhan@rediffmail.com)