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Not in the nation’s interest

Article 35A of the Constitution is not just about a legal issue but one with socioeconomic and political implications, writes Sanjeeb Panigrahi.

Sanjeeb Panigrahi |

Attempts to undo Article 35A appear to have created a huge political turmoil in the state of Jammu and Kashmir leading to a simmering anger in the valley. Kashmiris feel that striking down of Article 35A will unleash a demographic change in the state and will exacerbate emotive politics.

Article 5 of the Constitution confers citizenship on all citizens of India, including J&K but Article 35A empowers the J&K legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. Though this is a provision to clarify the issue of constitutional position with J&K vis-a-vis the rest of the country it has great emotional, political and demographic implications for Kashmiri.

Historical background

Article 370 of the Constitution of India restricts power of the Parliament to enact laws which would affect the immoveable properties of the state subjects/citizens of the State of J&K and Article 35A flows inexorably from it. It was devised specifically to grant protection to state subject laws, already defined and notified in 1927 and 1932 by the government of Maharaja Hari Singh, the last Dogra ruler who signed the Instrument of Accession with the Indian Union on 26 October 1947.

In 1952, Nehru and Sheikh Abdullah entered into the Delhi Agreement whereby it was agreed that Jammu and Kashmir would have full power over subjects other than those acceded to the Union of India under the Instrument of Accession. On 6 February 1954, the Constituent Assembly ratified the accession to India and reiterated the state’s special relationship with the Union of India.

The Constitution of Jammu and Kashmir came into force in 1957, with Article 147(c) mandating that no amendment can be made to the Constitution in relation to the provisions of the Constitution of India as applicable to the state.

This would, for all purposes, include the relationship enshrined under Article 370, though this Article cannot be disabled without the consent of the Constituent Assembly. Moreover, any tampering of the special relationship between India and Jammu and Kashmir as enshrined in the Article is specifically barred by this provision of the Constitution of Jammu and Kashmir, thereby it brings legitimacy and permanency to its special status.

Article 35-A was proclaimed by President Rajendra Prasad on 14 May 1954 on the advice of the Jawaharlal Nehru government to empower the Jammu and Kashmir legislature to define the permanent residents of the state and their entitlements. It was drawn from the Delhi Agreement of 1952 and from Article 370 that confers special status to the state.

A permanent resident is a citizen of the state as of 14 May 1954 and his/her descendant. This was the provision provided by Dogra rulers to prevent “non-permanent residents” of Jammu and Kashmir from settling in the state on a permanent basis.

The permanent residents of J&K are entitled to (i) employment under the state government; (ii) acquisition of immovable property in the state, (iii) settlement in the state and (iv) right to scholarships and such other forms of aid as the state government may provide.

Constitutional and legal Position

In view of the Supreme Court’s interpretation in Prem Nath Koul (1959) and Sampat Prakash (1970), the State of J&K occupies a distinct, unique and special position. Thus, in law, the State of J&K constitutes a class in itself and cannot be compared to the other states of the country. Various Articles in the Constitution provide special rights to states like Nagaland (Article 371A) and Mizoram (Article 371G) based on historical reasons.

Article 371G on Mizoram enunciates the same thing which reads, “(a) no Act of Parliament in respect of – (i) religious or social practices of the Mizos, (ii) Mizo customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Mizo Customary law, (iv) ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of Mizoram by a resolution so decides.”

The Constitution of India is studded with such “Special provisions” and “special status” to certain States; though in varying degrees and for historical reasons. Examples are Assam, (Art. 371B), Manipur (Art. 371C), Andhra Pradesh (Art. 371D), Sikkim (Art. 371F), Arunachal Pradesh (Art. 371H), and Goa (Art. 371I).

Devastating Impact

Even countries like Canada, Britain respect diversity, for example Quebec in Canada. Britain has conferred “special status” with substantial autonomy on Scotland and Wales, not to forget Northern Ireland. If Article 35A is abolished or declared invalid, the state laws related to permanent residency will also go.

This will have a devastating impact on the status of Jammu and Kashmir. Article 370 and Article 35A are like Siamese twins and serve as a bridge between the state and the rest of India. Any imbalance therein is likely to damage the socio-politico and economic fabric of the nation.

Further, the extension of the Fundamental Rights and every other provision to J&K through Presidential Orders will cease to apply. More importantly, if Article 35A is scrapped, it would raise the question about the legality of all constitutional orders from 1950 onwards. The move could trigger an explosive situation in the state which would be of far greater magnitude than the 2008 Amarnath land row.

Way forward

Doing away with Article 35-A, with its roots in Article 370, would snatch the vestige of autonomy that the state enjoys in the Indian Union. There is a need to have a larger debate on Article 35A among political parties, intelligentsia and the civil society at large since Article 35A is not only a constitutional or legal issue but one that has larger socio-economic and political ramifications.

The Centre needs to take all political parties along for protecting the rights and privileges of the people of the state. This is not the first time that Article 35A has been challenged in the Supreme Court. Similar petitions have been dismissed by the Court thrice in 1956, 1961 and 1970. The government needs to put its best defence in the Supreme Court.

The writer is an Advocate, Supreme Court of India.