Today’s (18.07.2017) news report is that the Supreme Court of India referred the matter about validity of Article 35 A of Constitution to three judges bench. On 17.07.2017, a public interest litigation (PIL), Writ Petition (Civil) No.722 of 2014 titled as WE THE CITIZENS .Vs. UNION OF INDIA AND ANR, was taken up by the two judges bench of the Supreme Court comprised of Hon’ble Chief Justice Mr. J. S. Khehar and Hon’ble Dr. Justice D.Y. Chandrachud and after recording proceedings referred the matter to three judge bench.
This PIL was initiated by a Delhi based NGO “We the Citizens” to challenge the vires of Article 35 A of the Constitution as ultra vires Indian Constitution. Remember, this PIL was filed in the Supreme Court in 2014 when the BJP Government took charge of Union Government. The first proceeding recorded, as available on the Supreme Court site is dated 03.12.2014.
First of all it is necessary to understand what this Article 35 A stands for. This Article cannot be found in India Constitution, as we read as usual. This Article is a part of the Presidential Order called the CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954. It is to remember that in the exercise of powers conferred upon the President of India under Article 370 (1), from 1950 to February 1994, the President of India issued 50 such Presidential Orders to make various provisions of India Constitution applicable to Jammu and Kashmir. Three orders in 1950, 1952 and 1954 were issued prior to the Constitution of Jammu and Kashmir came into force in 1956. The present Article was introduced by the Presidential Order, 1954 much before the Constitution of Jammu and Kashmir came into force. This Article 35 A that starts with a nonobstant clause saves existing and any law enacted after issuance of the 1954 Order by the Legislature of State to impose restrictions in respect of certain matters; It reads as:
“35A. 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.”.
Meaning thereby the Legislature of the State of Jammu & Kashmir, by law, can restrict employment and right to acquire immoveable property etc. in the State available only for permanent residents of Jammu & Kashmir.
The Presidential Order, 1954 and thus Article 35 A came into existence about two years after the “Delhi Agreement, 1952” between the Union Government of India and the Jammu & Kashmir, in furtherance of the terms of the Instrument of Accession, 1947. It is to be remembered that before accession, the State of Jammu and Kashmir (called Kashmir at that time) was a sovereign state as was India. However, after signing the Instrument of Accession on 26.10.1947, not like other princely states of India, the State of Kashmir surrendered its legislative sovereignty to India only respect of 3 class of matters specified in the Instrument. These were Defence, Foreign Affairs and Communications and few ancillary matters. However, the Kashmir retained legislative sovereignty in respect of all other matters to legislate for the state. In the Delhi Agreement, 1952, the Union Government agreed that while the residuary powers of legislature vested in the Centre in respect of all states other than Jammu and Kashmir, in the case of the latter they vested ill the State itself and thus limiting legislative sovereignty of India only to matters specified in the Instrument of Accession. Not only this, the Union Government further agreed in principle to the right of the State of J&K to have its own flag, as well.
Then thereafter, the Constituent Assembly for Jammu & Kashmir was constituted to draft its own Constitution with all the elements of autonomy present therein. During that period in Parliament of India, Dr. Syama Prasad Mukharji of the Jana Sangh, N.N. Khare of the Hindu Mahasabha and the Sucheta Kriplani of Praja Socialist Party vehemently criticized the Delhi Agreement. Dr. Syama Prasad Mukherji said: “Proceed in accordance with a constitutional manner, not just play with the Constitution”. N.N. Khare said: “It is a voluntary abdication of the power over Kashmir by the government. It is also a sort of violation of our Constitution” whereas Sucheta Kriplani warned the government that “We are treading on a very dangerous ground if we are going to make special concession to satisfy the Kashmir leadership.”
However, Communist Spokesman A.K. Gopalan rather supported the agreement and said, “certainly it helps the unity of India, it helps the interests of India, it also certainly helps the people of Jammu and Kashmir not to go out of India and it is a good weapon against those who want to create confusion and disunity in the state.” Pt. Jawaharlal Nehru, the Prime Minister had given a logical answer to their criticism, saying, “the strongest bonds that bind will not be of your armies or even of your Constitution to which so much reference has been made but bonds which are stronger than the Constitution and laws and armies-bonds that bind through love and affection and understanding.”
In this background, respecting the terms of Instrument of Accession, the State of Jammu & Kashmir was given autonomy, in lieu of surrendering a part of its sovereignty in favour of India. And particularly when the J&K was not a part of British India.
Initially, in Indian Constitution Article 19 (1) (f) granted a freedom to every citizen of India to acquire, hold and dispose of property. Article 19 (1) (e) gave a freedom to reside and settle in any part of the territory of India. Full effect of freedom can be seen only if both the provisions of Article 19 are given effect to. However, vide 44th Amendment in 1978, the Morarji Desai Government omitted Article 19 (1) (f) and thereby giving the individual states to pass their own laws with respect to restricting any citizen of India from acquiring and holding the property in that particular state; and thus discriminating citizens of India on the basis of his being not a domicile of a state.
Article 35A of Presidential Order, 1954 (applicable to J&K) deals with the same thing and in the same manner as section 2 of the 44th amendment, omitting Article 19 (1) (f) of Indian Constitution. Then how it can be said that Article 35 A is ultravires of Indian Constitution, particularly, when Article 35A is an outcome of Instrument of Accession that is binding on Indian Government. Why there is no challenge to section 2 of the 44th amendment to Indian Constitution?
But the reason there. Article 35A gives a power to J&K to make law to restrict employment and acquisition of property etc. only to permanent residents of Jammu & Kashmir, the state, autonomy of which a section of India wants to erode completely. They will not speak about laws made by various states of India like Gujarat, Himachal Pradesh, Rajasthan etc. not to allow any citizen of India other than the respective state, to acquire and hold property.
It is worth to mention here that Supreme Court has very limited powers under Article 32 in respect of Kashmir i.e. only to enforce fundamental rights. Interestingly after 44th amendment, to acquire or hold property is no more a fundamental right.
Now, the Hindutava right wing is out with all its weaponry to erode autonomy of J&K. Kashmir people too have been diluting their autonomy themselves, recently by adopting the GST Act, 2017 and now this legal missile may hit very hard and if they succeeded in this PIL, they will certainly change the demography of Jammu & Kashmir and will enslave the State without fighting.
+—Malkeet Singh (18.07.2017
