The State of Jammu and Kashmir and its special status has always been a contentious issue and extremely polarising; what has brought the debate back into the limelight is the latest challenge to Article 35A of the Constitution of Indian pending in the Supreme Court. For those who arrived late, Article 35A along with Article 370 of the Constitution form the bedrock of special status of State of Jammu and Kashmir. Let us start at the start and see what Article 35A really is:
What is Article 35A?
It is a carte blanche (a French phrase, meaning “unlimited discretionary power to act; unrestricted authority”) given to the legislature of State of Jammu & Kashmir to decide as to who the “Permanent Residents” of the state are. This in turns helps the legislature to grant special privileges to such residents in land acquisition, jobs and other welfare schemes. Article 35A reads:
“Saving of laws with respect to permanent residents and their rights.
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:
(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) 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.”
When was this first introduced, and why?
Article 35A was introduced by a Presidential order in the year 1954 to safeguard the unique identity of Kashmiri people. Since the J&K legislature possesses the power to decide who would be recognized as “Permanent Resident” (through a law ratified by 2/3 of the majority of the legislature), it ensured that the final word on the issue of permanent residency always remained firmly with the Legislature of the State of Jammu and Kashmir. It was introduced after a prolonged discussion between the then Prime Minister of India Pt. Nehru and Prime Minister of Jammu and Kashmir Sheikh Abdulla.(yes the PM of Jammu and Kashmir it is not a typo, we will discuss this but all good things must wait!), The article was introduced to insure that the ethnic milieu of the State of Jammu and Kashmir remains intact and further strengthen the accession of State of Jammu and Kashmir in the Union of India.
How can constitution be amended by a Presidential order?
If this question popped up in your head, then you are up to speed with Article 368 of the Constitution, which provides for power and procedure to amend the Constitution of India. Quite clearly, a presidential order clearly does not find mention as one of the mechanisms of amendment as per Article 368. Where is the power to be derived from then? The Answer to the question lies in reading of Article 370 (d) of the Constitution which reads:
“Article 370: Temporary provisions with respect to State of Jammu and Kashmir
…(d) Such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modification as the President may by order specify…”
Thus it is clear that Article 370 (d) empowers the President to issue such orders.
Can such exceptions and modifications be made without the knowledge of the parliament?
A five judge bench while discussing Article 370 in Puranlal Lakhanpala vs President of India has held that the President can modify an existing provision in the Constitution under Article 370. The Court though was silent on the issue whether this can be done without the knowledge of the Parliament.
What is the issue before the Supreme Court now?
The Petition before the Supreme Court asserts that Article 35 A 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 is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.
Another writ challenges Article 35A on the ground that it violates women’s right to property.
The attempted dilution of the Article 35A is seen by the certain sections of Jammu and Kashmir as an attempt to alter the demographics of the state, by making it easy for people from outside the state to own land and settle there. At present, according to Constitution of J&K a “Permanent Resident” is defined as a person who was a state subject on May 14, 1954, or who has been residing in the state for a period of 10 years, and has “lawfully acquired immovable property in the state. Therefore, the issue has become a contentious one touching upon the autonomy of the State of Jammu & Kashmir on one hand, and sovereignty of the Parliament on the other.
The Supreme Court has to tread a cautious line moving ahead, as the issue is fraught with grave political implications and cannot be treated as a pure legal question simpliciter. Whatever it decides, the same has to be in consonance with the intended purpose of the provision and not just the black letter of law.