Article 35A, in fact

Source: By Haseeb A Drabu: The Indian Express

When the minions of the BJP promise abolition of Article 370 or Article 35A, especially prior to the elections, it is not to be taken seriously. In fact, the response, if any, should be to dare them to do it. Indeed, I had done so in 2014 in response to a rant by Jitendra Singh, a minister in the PMO, when he spoke out of turn (‘Dare them to do it!’, Kashmir Life, June 2, 2014). It has been almost five years since an Article 370 and 35A stand where they are even as Singh is sitting in the same chair!

But when an erudite political leader with the genteel and gravitas of Arun Jaitley goes public on it, it needs to be taken very seriously. In a blog, Jaitley has said that “Article 35 A was “surreptitiously” included in the Indian Constitution, terming it as a “historical blunder” committed by Jawaharlal Nehru.

One cannot pick a bone with Jaitley on his calling it a “historical blunder”. That is an opinion based not only on an ideology but a certain understanding of Indian history and a vision for Indian polity. But, the same cannot be said about besmirching Article 35A as a deceitful entry in the Constitution of India. Besides political, it has serious constitutional implications. It also makes the Constitution of India appear as if it were contaminated.

Article 35A empowers the government of Jammu and Kashmir to do two things: First, to define a class of persons as constituting “permanent residents” of the state and second, to allow the government to confer on these people’s special rights and privileges with respect to matters of public employment and acquisition of immovable property in the state. In addition, it grants immunity to such special rights and privileges legislation from being annulled on the ground that they infringe one or the other of the fundamental rights guaranteed by the Constitution.

Article 35A was included into the Constitution of India in 1954 by a presidential order made under Article 370 of the Constitution of India. The process followed in getting Article 35A is as constitutional and transparent as it can get. The basic principles committee of the J&K Constituent Assembly, which was set up in 1951, presented its report to the Constituent Assembly in February 1954. As a part of the report, an annexure which listed out the provisions of the Constitution of India, besides Articles 1 and 370, that should be made applicable to J&K. This annexure included, among other Articles, Article 35A.

It is an interesting factoid that it was Girdhari Lal Dogra (father-in-law of Jaitley), who proposed that the annexure be sent to the government of India for appropriate action. This was February of 1954 and three months later, the President’s order under Article 370 was issued, incorporating, among other provisions, Article 35A in the Constitution. The Article, through which Article 35A was brought in, i.e Article 370, was debated threadbare in the Constituent Assembly of India for more than five months before it was made a part of the Constitution as adopted in 1950.

It is important to note that while this constitutional process was being undertaken and concluded, a political process was running parallel to it. The Prime Minister of India, Jawaharlal Nehru, and Prime Minister of J&K, Sheikh Mohammed Abdullah, reached an agreement. Nehru recorded it in a note dated July 20, 1952. The terms of the agreement, where the sharing of sovereignty was detailed, were presented to the Lok Sabha. On his part, Abdullah briefed the J&K Constituent Assembly in what is a famous speech in the history of J&K.

While terming it as “surreptitious”, Jaitley probably means that Article 35A could not have been introduced through a process outside the ordinary amending procedure prescribed under Article 368. If this is indeed so, then the issue is a constitutional technicality.

On this, one can do no better than quote A G Noorani, the most authoritative voice on the constitutional relationship between India and J&K: “Article 35-A is not a mere executive order under Article 370 but is itself a constitutional provision, a compact recorded in both constitutions. No court can ignore this. As the Privy Council held, ‘parliament could as a matter of abstract law’ repeal the statute of Westminster recognising the independence of the dominions. But that is theory and has no relation to realities.”

Be that as it may, assume for a moment that Article 35A is repealed. Will it allow “Indians” to buy land in Kashmir? The answer is no. It will not alter the situation, for, as Noorani points out, the 1927 notification of the government of Jammu and Kashmir, which imposed restrictions on the employment of, and land ownership by “outsiders” (non-state subjects), is a part of the J&K Constitution.

If anything, if Article 35A is expended, it could pave the way for the rolling back of all orders extending India’s Constitution to J&K after November 17, 1956, when the state’s Constituent Assembly was dissolved. For, as a matter of legal construction, if the presidential order incorporating Article 35A, which was on the recommendation of the state’s Constituent Assembly, is without legal authority, then all subsequent presidential orders issued without the consent or concurrence of the Constituent Assembly are a bible of illegality.

This will take J&K back to a quasi-sovereign status, with its own prime minister and president. The state subjects of J&K will cease to be citizens of India and entry of Indian nationals into J&K will be restricted. The goods from India will have to pass through a customs barrier and pay an import duty. And above all, the people of J&K will not be legally obliged to uphold the integrity and sovereignty of India. The comic irony will be that separatists will become mainstream overnight!

For Kashmir and Kashmiris, Article 370, in its present emaciated form, or 35A is not an existential issue. But for India as a federation it is. If Article 35A is expended it will impinge on basic tenets of constitutional interpretation and will damage the most solemn promises, vis a vis other states, that lie at the heart of the Indian federation. It may well be the beginning of the end of federal India.

 

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