Repeal of Article 35A: A recipe for disaster in J&K

Article 35A of the Indian Constitution gives the Jammu and Kashmir legislature a carte blanche to decide who are the ‘permanent residents’ of the state and confer special rights on them. They also get privileges in getting public sector jobs, acquisition of property in the state, scholarships and other government-driven welfare measures. The mandate is that no act of the legislature under the ambit of the article can be challenged for violating the Constitution or any other law of the land. In 1954, the then President Rajendra Prasad had ordered this law to be incorporated in the Constitution on the advice of the then Prime Minister Jawaharlal Nehru.

The Constitution (Application to J&K) Order of 1954 followed the 1952 Delhi Agreement between Nehru and the then J&K PM, Sheikh Abdullah, which extended Indian citizenship to ‘state subjects’ of Jammu and Kashmir.

SINGLING OUT OF J&K IS PUZZLING

Pertinently, the Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain ‘exceptions and modifications’ to the Constitution for the benefit of ‘state subjects’ of Jammu and Kashmir. In other words, Article 35A was added to the Constitution as testimony to the special consideration that the Indian Union accorded to the ‘permanent residents’ of Jammu and Kashmir. There are certain laws that grant special provisions to other states of India, too. One fails to understand why only the J&K has been put under judicial scrutiny. Recently, a writ petition filed by a little-known NGO, ‘We the Citizens’ challenged the validity of both the Article 35A and the Article 370. It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution, and the state of Jammu and Kashmir was never accorded any special status in the Constitution. The petition claims that Article 370 was a ‘temporary provision’ to help bring normalcy in the J&K.

The Supreme Court Bench, led by Justice Dipak Misra, tagged the petitions and referred them to a three-judge Bench. The court has indicated that the validity of Articles 35A and 370 may ultimately be decided by a Constitution Bench. However, bypassing the parliamentary route of lawmaking when the President incorporated Article 35A into the Constitution and when Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution, is not only a dubious move, but also raises some pertinent questions. Were these petitions even admissible legally? If yes, was the President acting outside his jurisdiction when he enacted the law?

A five-judge bench of the Supreme Court in its March 1961 ruling in Puranlal Lakhanpal vs the President of India discusses the President’s powers under Art 370 to ‘modify’ the Constitution. Though the court observes that the President may modify an existing provision in the Constitution under Art 370, the judgment is silent as to whether the President can, without Parliament’s knowledge, introduce a new article.

REPEAL WILL WIDEN GAP BETWEEN YOUTH AND GOVT

People in J&K fear that any move to scrap Article 35A will only lead to more turmoil and bloodshed in the state. A repeal of this law will widen the gap between the youth and the government, adding to the growing alienation and anger among the large population of youngsters. It is, thus, important that the apex court not only junks the petitions that have raised questions about the state’s special status, but also passes orders to safeguard these laws.

When the Peoples Democratic Party (PDP) formed a coalition government with the BJP in 2015, it promised to protect and uphold the constitutional position of the state by safeguarding the laws that bestow special privileges on it. PDP president Mehbooba Mufti was also assured by the prime minister that the special relations between J&K and the Union of India will not be put to any test.

FEAR PSYCHOSIS AMONG PEOPLE

The state has seen much turmoil that must be put to an end. The legal challenges to the special status have led to a fear psychosis among the people. They fear that if the Article 35A goes, there will be fresh turmoil in the state. In the worst scenario, communal elements may push the state towards a situation that will test the centuries-old pluralistic bonds between people belonging to culturally diverse regions of the state.article 35A is neither ‘against the very spirit of oneness of India’, nor does it create a ‘class within a class of Indian citizens’. We have welcomed outsiders with open arms even when our state was burning. However, fiddling with the state’s special status will have dangerous consequences.

ALL HELL WILL BREAK LOOSE IF J&K IS DIVESTED OF ITS SPECIAL STATUS; COMMUNAL ELEMENTS MAY PUSH THE STATE TOWARDS A SITUATION THAT WILL TEST THE CENTURIESOLD PLURALISTIC BONDS BETWEEN PEOPLE FROM CULTURALLY DIVERSE REGIONS OF THE STATE