RIGHTS IN LIMBO
The Centre’s push to rescind Articles 370 and 35A has lent the political uncertainty in J&K a new edge
In a press conference in Srinagar on June 12, Jammu & Kashmir governor Satya Pal Malik attempted to take the edge off rising apprehensions in the Valley that the new government at the Centre was committed to the idea of abrogating Articles 370 and 35A, which guarantee special laws and safeguards for the state. Malik said this was not a new idea, and yet maintained that there was “nothing to worry about”. He even cited, in an earlier interview in October last year, similar provisions in states like Himachal Pradesh and the Northeast. In that interview, Malik went so far as to hold out a “guarantee”, premised on his “faith in the Indian judiciary”, perhaps referring to the petitions in the Supreme Court challenging the constitutional validity of 35A.
Despite the governor’s assurances, fears of an imminent abrogation of the constitutional safeguards are palpable in the state. BJP chief Amit Shah’s induction as India’s home minister, and speculation about the home ministry’s intention to constitute a delimitation commission for the state to realign constituencies (ostensibly to give the BJP-backing Jammu region a numerical advantage in the J&K assembly) have only added to the fears. This could also put the BJP in pole position to finally push through its long-trumpeted goal to end J&K’s special status. That said, it has been argued that by going after Articles 370 and 35A, Prime Minister Narendra Modi and Shah could expose the central government to a flood of litigation, citing, in Malik’s words, ‘similar provisions’ in other states.
It’s true that J&K isn’t the only state for which special laws and safeguards have been included in the Constitution. There are 11 states, not including Himachal, that are protected under Articles 371 and 371A to 371J. The states include Maharashtra, Gujarat, Goa, Assam, Arunachal Pradesh, Nagaland, Mizoram, Manipur, Andhra Pradesh, Telangana and Karnataka. But these are essentially constitutional provisions that protect tribal/ ethnic land, property, culture, languages, social practices and customary law.
The Himachal Pradesh Tenancy & Land Reforms Act 1972 (specifically, Section 118), which is most commonly, albeit erroneously (as by Governor Malik back in October 2018),
held up as a parallel to Article 35A, is in fact a state legislation that restricts transfer of [agricultural] land in favour of a person who is not a native of the state. As pointed out time and again, theoretically, it is possible for a non-Himachali to buy land, including farmland, after seeking permission from the state government. Also, there is no bar on outsiders buying flats, built-up homes and commercial premises. Himachal also has a domicile law mandating a minimum 20-year residency to qualify for admission to state-run institutions and government jobs.
Sikkim is really the only other state where laws predating its accession to India in 1975 continue to exist. Article 371F(k) mandates that all laws in force before Sikkim became a part of the Indian Union shall continue unless rescinded or amended by the state assembly. This includes the Maharaja Regulation of October 1962, which bars the sale or transfer of property to outsiders. The constitutional provision was ostensibly included to protect the rights of the largely tribal population of Sikkim at the time of its accession.
Both Articles 370 and 371 were part of the original draft of the Constitution that came into force on January 26, 1950. The other state-specific provisions were included through amendments under Article 368, which empowers Parliament and lays out the procedure for constitutional amendments. Article 35A, however, was included via a presidential order in 1954, to empower the J&K legislature to define permanent residents and extend them the right to acquire property, vote in elections and seek government employment. That the provision did not have parliamentary approval is what has been challenged in the Supreme Court. K.B. Jandial, a former civil servant who did a stint with the J&K Public Service Commission, insists “the president is not empowered to add a new article, as is the case with Article 35A”. Speaking at a public forum in Jammu, Jandial even described it as “a sinister insertion in the Constitution”.
So the essential question before the court is whether the president has the power to introduce a new article in the Constitution bypassing Parliament. Article 370(1)(d) appears to grant the president such power, albeit in concurrence with the J&K government, but the jury is still out on that.
J&K isn’t the only state with special laws and safeguards. There are 11 states protected under Articles 371, 371A to 371J, including Maharashtra, Gujarat, Goa, Assam, Arunachal Pradesh, Nagaland, Mizoram, Manipur, Andhra Pradesh, Telangana and Karnataka. But these are mostly constitutional provisions that protect tribal/ ethnic land, property, culture, languages, social practices and customary law
VALLEY ERUPTS A protest in Srinagar against attempts to revoke Article 35A