Analysis of Article 35 A
Article 35A is a unique provision included in the Indian constitution that bestowed Jammu and Kashmir Legislature a complete freedom to decide about the permanent residents of the State. It gives the permanent residents special rights and privileges regarding the acquisition of property in the state, in public sector jobs, scholarships and other public aid and welfare. The provision was arguably added in the constitution in pursuance of Article 370 that gives special status to the state of J&K within the Indian Union. The wording of Article 35A tries to insulate it from being challenged in courts by mandating that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land .
Article 35A was incorporated into the Constitution in 1954 by order of the then President Rajendra Prasad as advised by the Jawaharlal Nehru Cabinet. This controversial order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which led to the extension of Indian citizenship to the State subjects of Jammu and Kashmir.
It was under Article 370 (1) (d) of the constitution that this unique Presidential order was issued. 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 this way, Article 35A was added to the Constitution as a proof of the special consideration the Indian government bestowed upon the permanent residents of Jammu and Kashmir.
Legal Background of the Controversy
Under Article 368 of the Indian Constitution, only the Parliament has been given the power to amend the Indian Constitution. But this route of lawmaking through the Parliament was side-tracked when the President incorporated Article 35A into the Constitution.
This short-circuiting of the normal law-making process has raised uncomfortable political, legal and constitutional questions. Did the then President act outside his jurisdiction? Is Article 35A void because the Nehru government did not place it before Parliament for discussion?
There has been an absence of political, legal and constitutional clarity on these vexed issues. There have been various judicial pronouncements on this vexed issue. In March 1961 judgment in Puranlal Lakhanpal vs. The President of India, the Supreme Court, elaborated on the President s powers under Article 370 to make slight modifications in the Constitution. The apex court argued that the President could make modifications to an existing provision in the Constitution under Article 370. However, the judgment was silent as to whether the President can, without the Parliament s knowledge, introduce a new Article. This question remained open.
Again a writ petition filed by NGO We the Citizens questioned the validity of both Article 35A and Article 370. Questioning the reasonableness of both these articles, it provided various cogent arguments as under:-
Four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Indian Constitution. Originally, the State of Jammu and Kashmir was never accorded any special status in the Constitution.
Article 370 was only supposed to be a temporary provision meant to bring normalcy in Jammu and Kashmir by strengthening democracy there. It was not the intention of the framers of the Indian Constitution that Article 370 would become a politically motivated tool to bring permanent amendments, like Article 35A, in the Constitution.
Article 35 A is against the very spirit of oneness of India as it creates a class within a class of Indian citizens . It arbitrarily restricts citizens from other states of the Indian Union from accessing employment opportunities or buying property within Jammu and Kashmir. This discrimination is a clear-cut case of violation of fundamental rights under Articles 14, 19 and 21 of the Indian Constitution.
Recently the Supreme Court bench (led by Justice Dipak Misra) has indicated that the validity of Articles 35A and 370 may ultimately be decided by a Constitution Bench. A three-judge bench is currently hearing whether the petitions challenging Article 35A should be referred to a Constitution Bench for an in-depth analysis.
It was through the Instrument of Accession signed by its ruler Hari Singh in October 1947 that J&K became a part of the Indian Union. Sheikh Abdullah (the then ruler of J&K) cleverly negotiated the contours of political relationship of J&K with India via Article 370 in the Indian Constitution. This article ensured that the specific concerns of J&K were accommodated under India s asymmetrical federalism wherein all the states are not treated equally, but their different contextual requirements are fulfilled through special arrangements. Twelve other states of the Indian Union also enjoy special status but only in certain minor matters. Article 370 guarantees special status to Jammu and Kashmir.
Who is a Permanent Resident of J&K?
The issue of the definition of the permanent resident of J&K is at the heart of the controversy surrounding Article 35A. The 1956 Jammu and Kashmir Constitution actually defines a Permanent Resident as one who must be a citizen of India and a state subject on May 14, 1954, or a resident of the state for ten years, and owns immovable property in the state . Supporters of this arrangement say that it is necessary to protect the demographic profile of the state. But its critics say that it goes against the spirit of oneness and equality of Indian citizenship.
Negative Aspects of Article 35A
It forbids Indian citizens from settling in the state, acquiring immovable properties, seeking employment in the state.
The critique of this article from the angle of women s rights is equally strong. If a native woman marries a man not holding a permanent resident certificate of Jammu & Kashmir, then she would lose her property right and their children also become ineligible to claim the property of their mother.
It undermines the rights of West Pakistan refugees. Persons who migrated from Pakistan to India in 1947 have been denied the permanent resident status of J&K. This is an issue worth looking from a humane perspective but despite assurances from the government at periodic intervals. However, The Resettlement Act of 1982, passed by the Jammu and Kashmir legislature, tried to partially rectify the situation. This act bestowed upon such persons and their children the rights of permanent residents in J&K. However, the issue is politically very sensitive in J&K because of the clash of ideological positions, claims and counter-claims of different stakeholders. Hence, the permanent resident certificate has not been granted to these people. The issue must be resolved amicably by giving due rights to these people as they were uprooted from their ancestral roots in 1947 and then looked upon India as a beacon of hope.
It conflicts with (rather violates) fundamental rights under Articles 14, 19 and 21 of the Constitution
Critics also allege that Article 35A has catalysed in radicalization and ghettoization and aids separatist ideology.
Not granting permanent resident status to the West Pakistan refugees is very inhuman and grossly undermines their well-being. It also undermines their faith in the goodness of India as well as its impartial judicial system.
Article 35A also adversely affects the economic development of the state.
Analysis of Article 370
Arguably, Article 370 is the most controversial provision of the constitution of India. It deals exclusively with the state of Jammu and Kashmir. This article has been the subject of controversy right since its inception. Some sections demand the abrogation of this article for a complete merger of J&K with the Union of India. However, some sections, especially from the Kashmir valley, argue for the continuation of this article saying that it was an article of faith undergirding the Instrument of Accession under which J&K came into the Indian Union.
Under Article 1 of the Indian constitution, Jammu and Kashmir is a constituent state of Indian Union, and its territory forms an integral part of the territory of India. However, Article 370 gives it a special status, and consequently, all the provisions of the constitution of India are not applicable to it. The state of J&K is also unique in the sense that it has its separate state constitution.
Article 370 is a temporary provision. The President of India can declare that Article 370 ceases to be operative or operates with exceptions and modifications. However, this can be done by the President only on the recommendation of the Constituent Assembly of the state of Jammu and Kashmir.
Criticism of Article 370
Critics say that Article 370 is a case of special appeasement and it should be deleted for J&K s complete merger with India in the interest of larger national integration.
There is a legal provision in India that places of religious worship cannot be misused for political purposes. But this provision does not apply to J&K, according to one scholar, this result into a practical situation where the state does not come within the ambit of secularism. It leads to a situation where separatism gets legally recognised. The government remains a mere spectator when separatist leaders give anti-India speeches from the ramparts of the mosque routinely after Friday prayers.
Corruption corrodes developmental processes in India, and the situation of J&K is no different. The jurisdiction of institutions like CAG, Lokpal, CBI etc. do not extend to J&K due to Article 370.
RTI is not applicable to the state. Hence, the people of the state are deprived of the right to information. It means that an important aspect of democracy, transparency and accountability remains missing from the State. The civil society of the state lacks this RTI tool to fight corruption.
Separatist politics in J&K has a negative bearing on inter-communal relations and perceptions in other states of the Indian Union.
The issues related to Article 35A and Article 370 are very complex as well as sensitive. The Supreme Court is likely to consider all aspects of these issues, and hence it has referred the matter to a larger Constitution bench. The political parties of J&K are also key stakeholders in these issues. They should refrain from inflaming popular passions on these sensitive issues. There is a need to adopt a humane approach as far as solving the problems of permanent residence certificate faced by West Pakistan refugees. Other stakeholders should also understand the negative implications of doing politics over the demand for complete abrogation of Article 370 on the successful asymmetrical model of federalism practised by India. Abrogation of Article 370 would also create negative perceptions for other states enjoying special states like Mizoram and Nagaland. It might complicate centre-state relations in these border states with likely negative repercussions on national security. Hence, the matter should be best left to the wisdom of the Honourable Supreme Court of India. The stakeholders should not be creating law and order issues in Jammu and Kashmir by doing negative politics on these sensitive matters as the issue is sub-judice now