Pro­vi­sion With­out Par­lia­men­tary Nod

Ar­ti­cle 35A is a clar­i­fi­ca­tory pro­vi­sion to clear the is­sue of con­sti­tu­tional po­si­tion as ob­served in the rest of coun­try in con­trast to Jammu and Kash­mir

The Day After - - FROM THE EDITOR'S DESK - By AShok BhAN

Ape­ti­tion 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 rec­og­nizes 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, rec­og­nizes 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 virus in 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:

• 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.

• 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.

• 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.

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

• 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.

• 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 non­res­i­dents 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 de­fense 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. (Au­thor is a Se­nior Ad­vo­cate, Supreme Court of In­dia and Chair­man, Kash­mir Strat­egy & Pol­icy group. Views ex­pressed above are com­pletely per­sonal) Feed­back on:re­porter@dayaf­terindia.com

Jammu & Kash­mir peo­ple protest in sup­port of Ar­ti­cle 35A

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