Govt Requests SC To Stall Hearings On Article 35A; Know What 35A Is About

The Supreme Court on 30 October adjourned the hearing of the plea challenging Article 35A of the Constitution by three months.

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.

Dineshwar Sharma, a former director of the Intelligence Bureau (IB), was appointed the Centre’s interlocutor for Jammu and Kashmir on 23 October. The government had pointed out to the apex court that this would not be the right time to continue the hearing on the already contentious Article 35A.

Following the government’s directive, a three-judge bench headed by Chief Justice Dipak Mishra adjourned the hearing.

The Jammu and Kashmir government was represented by senior lawyers like Fali S Nariman, Shekhar Naphade, Rakesh Dwivedi, K V Viswanathan and standing counsel Shoeb Alam who have defended Article 35A.

The bench was hearing three separate writ petitions challenging Article 35A in addition to the main writ petition filed by a group called ‘We The Citizens’.

Several interlocutory petitions have been filed in support of 35A by various individuals and civil society groups that sought a continuance of the special status to Jammu and Kashmir.

The apex court had recently opined that a constitution bench might examine whether Article 35A was gender-biased and violative of the basic structure of the Constitution.

The court was hearing a plea by Dr Charu Wali Khanna, a Kashmiri resident. It had said that if the provisions of the Article 35A was found to be ultra vires or outside the ambit of the basic structure of the constitution, it would be reviewed by a five-judge bench.

The J&K government had earlier pointed out that in Dr Susheela Sawhney v State of Jammu and Kashmir, the High Court in 2002, had established that a daughter of a permanent resident of Jammu and Kashmir marrying a non-permanent resident would not lose the status of a permanent resident.

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.

Text of Article 35A

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:

1. defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
2. conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects:

• employment under the State Government;
• acquisition of immovable property in the State;
• settlement in the State; or
• right to scholarships 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.”

How did it come about?

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 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 the power to define and regulate the rights and privileges of the permanent residents of the State, more especially regarding the acquisition of immovable property, appointments to services and like matters. Till then the existing State law should apply.”

Debates surrounding Article 35A

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 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 the 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.