Sudhanva Shetty Shetty
Writer, coffee-addict, likes folk music & long walks in the rain. Firmly believes that there's nothing more important in a democracy than a well-informed electorate.
Article 35A of the Indian Constitution has been controversial ever since its incorporation seven decades ago, in 1954.
Recently, the Supreme Court indicated that the validity of Article 35A and Article 370 (which grants special autonomous status to J&K) may ultimately be decided by a Constitution Bench.
Attorney-General KK Venugopal has also called for a debate in the Supreme Court on the sensitive subject.
The centre has refused to interfere. Union Home Minister Rajnath Singh on 11 September said that the central government would not go against the “sentiments of the people of Jammu & Kashmir” as far as Article 35A is concerned.
Article 35A gives the Jammu and Kashmir (J&K) Legislature a carte blanche (complete freedom) to decide who are “permanent residents” of the state and confer on them special rights and privileges in public sector jobs, acquisition of property in J&K, scholarships, and other public aid and welfare.
Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:
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.”
Before 1947, J&K was a princely state under the British Paramountcy. The people of the princely states were not British colonial subjects but “state subjects”.
Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.
Following the accession of Jammu and Kashmir to the Indian Union on October 26, 1947, the Maharaja, Hari Singh, ceded control over defence, external affairs and communications to the Indian government. The Instrument of Accession and Article 370 of the Constitution of India formalised this relationship.
Discussions for furthering the relationship between the state of J&K and the Union led to the 1952 Delhi Agreement. Here, the governments agreed that Indian citizenship would be extended to all the residents of the state but the state would be empowered to legislate over the rights and privileges of the state subjects – who would now be called permanent residents.
In his statement to the Lok Sabha on the Delhi agreement, Prime Minister Jawaharlal Nehru said:
“The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time past, in the Maharaja’s time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there. And that continues. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Now they want to vary the old Maharaja’s laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. However, we agree that this should be cleared up. The old state’s subjects definition gave certain privileges regarding this acquisition of land, the services, and other minor things, I think, State scholarships and the rest.
So, we agreed and noted this down: ‘The State legislature shall have 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. Till then the existing State law should apply.’”
A petition currently being perused by the apex court argues that Article 35A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir, the petitioner argues, is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.
Another petition, filed by J&K native Charu Wali Khanna, challenged Article 35A for protecting certain provisions of the Jammu and Kashmir Constitution that restrict the basic right to property if a native woman marries a man not holding a permanent resident certificate. “Her children are denied a permanent resident certificate, thereby considering them illegitimate,” the petition said.
Another controversy is the constitutionality of 35A. Article 368(1) of the Constitution empowers only Parliament to amend the Constitution.
But the Nehru government did not place the adoption of Article 35A before Parliament. Did the Executive therefore act outside their jurisdiction? A reading of Article 368(1) affirms this. However, does the bypass of the Parliamentary route to amend the Constitution automatically nullify 35A?
Did the President act outside their jurisdiction? Article 370(1) says, “The President may apply the provisions of Constitution of India to the State of J&K with such exception and modification as he may by order specify.”
Here, does the phrase “modification” include power to amend the Constitution or to add a new Article to the constitution – like 35A, as had happened in 1954?
A five-judge bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discussed the President’s powers to amend the Constitution. In this case, the apex court observed that the President could modify an existing provision in the Constitution under Article 370. However, whether the President can introduce a new Article altogether is still debated.
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