Article 35A: The debate is on

Union home minister Rajnath Singh has categorically assured the Kashmir Valley on the legal challenge to Article 35A of the Constitution that the Centre would not do anything that would hurt the sentiment of Jammu and Kashmir. However, the question pertaining to Article 35A is pending before the Supreme Court which has to pronounce on its constitutionality. So, it is not only for the Union government to take a call on this. Besides, the opposition to any proposal to repeal this article comes from the Kashmir Valley only whereas the people outside the Valley feel that the special status of the state must be done away with. The recent controversy over Article 35A which empowers the legislature of J&K to define “Permanent Residents” (PR) of the state and provides special rights and privileges to them left me scurrying for books and commentaries on the Indian Constitution. I was astounded that this article is not to be found anywhere in the Constitution, not even in the text of the Constitution published by the Government of India. However, on Internet, it was added to the Constitution through a Presidential Order, viz., the Constitution (Application to Jammu and Kashmir) Order, 1954.

Thus, it is an extra-constitutional article not to be found in the body of the Constitution. So, it is debatable how come a Presidential Order acquires the status of an article of the Constitution. Nothing can be added to or deleted from the Constitution without following the procedure prescribed by Article 368, which provides for amendment. On May 14, 1954, President Rajendra Prasad, exercising his power under Article 370(1), on the advice of the Union Cabinet and with the concurrence of the Government of J&K, issued it. Superseding the earlier Order of 1950, it extended the application of various provisions of the Constitution, including Article 368. However, its application was subject to a proviso that “no such amendment shall have effect in relation to the state of J&K unless applied by the order of the President under Clause (1) of Article 370”. So, it only mandates that the amendment will apply to the state only after the President issues an order under Article 370(1) but does not circumscribe or bypass Article 368. Article 370(3) provides that the President may, by public notification, declare that this article shall cease to be operative or may be operative only with such exceptions and modifications and from such date as he may specify.

However, it can be done only on the recommendation of the Constituent Assembly of J&K. So, Article 370 empowers the President to make it inoperative but does not empower him to add any new provision to the Constitution. And the power given to the President to make it inoperative is rooted in the fact that it was a temporary provision as the heading of the article reads: “Temporary provisions with respect to the state of Jammu and Kashmir”. J&K high court had ruled in 2015 that Article 370 is “permanent, beyond amendment, repeal or abrogation”. The SC immediately struck it down when it was informed that it can be repealed by Parliament. Besides, Article 370(3) is now obsolete after January 26, 1957, when a new Constitution was enforced in the state and the Constituent Assembly ceased to exist. Article 35A says that no existing law in force in the state of J&K, and no law hereafter enacted by the Legislature of the state defining the classes of persons who are, or shall be, PRs of the state, or conferring on such PRs any special rights and privileges or imposing upon other persons any restrictions with respect to employment under the state government, acquisition of immovable property in the state, settlement in the state, or right to scholarship and such other forms of aid as the state government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part. This is being animadverted as discriminatory and unconstitutional. Jammu and Kashmir Study Centre has impugned its constitutionality in the apex court. Besides Charu Wali Khanna has challenged Section 6 of the J&K Constitution which curtails the freedom of women to marry men of their choices by not giving the heirs any right to property if the woman marries a man not holding the PR certificate. Her children are denied a PR certificate rendering them illegitimate even though she is a PR. Ironically, the woman also forfeits her property rights. However, it does not apply to a man marrying a woman outside J&K.

The J&K Constitution defines a PR of the state as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has lawfully acquired immovable property in the state. There is a problem with the raison d’être of J&K. Some experts feel that it is part of India only because of Article 370. It betrays an utter ignorance of the basics of the Constitution and even a tyro may not accept it. All parts of India are its parts because of Article 1 which defines its geography and the First Schedule gives a complete list of states and territories and J&K is placed on No. 15 of the Schedule. Like all other princely states, Maharaja Hari Singh of J&K also signed the Instrument of Accession and that is the basis of the state becoming part of India. However, Sheikh Abdullah was able to extricate certain concessions. But Jammu and Ladakh wanted full integration. Their slogan of complete integration of the state with India was expressed in the rallying cry “Ek vidhan, ek nishan, ek pradhan (one constitution, one flag and one President)”. In fact, Syama Prasad Mookerjee was inspired by it when he raised the slogan, “Ek desh mein do vidhan, do nishan, do pradhan, nahin chalenge, nahin challenge (two constitutions, two flags and two presidents in one one country- not acceptable, not acceptable)”.