HISTORICAL BACKGROUND
Persian language was removed as official court language and replaced by the Urdu language in the reign of Maharaja Pratap Singh ( further reading, kilam op, cit, page 290, Inside Kashmir by Pandit Prem Nath Bazaz page 86). This replacement had a negative impact on pundit community, who were not acquainted with new language fully and were thrown out by Maharaja Pratap Singh to be replaced by Urdu knowing educated youth. (J&K(G.R) file no.24 of 1891, kilam page no.290–291).
Many Pandits leaders and reformists especially Jai Lal Kilam, Shanker Lal Koul, Jai Lal Jalali started a movement ,named it ‘MULKI Movement ‘ or ‘Kashmir for Kashmiris ‘ movement demanding that only Kashmiris should be employed in the State government jobs (Citation -Gupta, Jyoti Bhushan Das- Jammu and Kashmir. Springer.p. 54. Robinson, Body of Victim, Body of Warrior 2013, pp. 34–35.)
An influx of Urdu knowing educated youth from India came to Kashmir and maharaja recruited them. This created bitterness among pundits and they started opposing the recruitment of Indian in Kashmir courts and British residency supported them as well.
Pandit Jailal Kilam, while commenting on the historical background of State subject Law “Kashmir Pandit took a leading part in bringing state subject law”. He narrates in his book, History of Kashmiri Pandit page 289-291 “and the first batch of pandit graduates came out in 1911 AD. A struggle was the result which took the shape of Kashmiri pandits versus the outsiders (Indian who were generally Arya Samajist and other Indians who were seeking jobs in Kashmir).In Kashmir, the British officers encouraged the pandits and even sided with them in their struggle against the outsiders. The outsider Indians were generally Arya Samajist with which was the name of Lala Lajpat Rai connected.This opposition to Indians by Kashmiri pandits according to Pandit Jai Lalkilam resulted in a formulation of the definition of the state subjects in 1912 AD and an order was promulgated that only the subjects of Jammu and Kashmir should be recruited to state services.
The result of this agitation was the creation of state subject definition committee soon after the accession of Maharaja Hari Singh after 1926 CA ( the Tribune, Aug 27, 1931, The Pioneer, Sept 27, 1931)
The new definition arrived at the committee was accepted by new Maharaja Hari Singh in 1927. So none from India after that period was appointed in any state job in Jammu and Kashmir if he or she doesn’t own hereditary state subject document. It is to mention here that anyone domiciled in the state of Jammu and Kashmir prior to the death of Ranbir Singh ( 1880) was given the state subject. (the tribune 27 Aug 1931)
WHAT IS ARTICLE 35A?
Article 35A of the Indian Constitution is an article that empowers the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. It is added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India, “in exercise of the powers conferred by” clause (1) of Article 370 of the Constitution, with the concurrence of the Government of the State of Jammu and Kashmir.
The 1927 Hereditary State Subject Order granted to the state subjects the right to the government office and the right to land use and ownership, which were not available to non-state subjects. ( Robinson, Body of Victim, Body of Warrior 2013, pp. 34–35.)
INSERTION OF ARTICLE 35 A INTO INDIAN CONSTITUTION:
Constantine & Kössler, Jammu, and Kashmir: A case of eroded autonomy 2014, pp. 126–127. :-
Following the accession of Jammu and Kashmir to the Indian Union on 26 October 1947, The Maharaja ceded control over defense, external affairs and communications (the ‘ceded subjects’) to the Government of India. The Article 370 of the Constitution of India and the concomitant Constitutional Order of 1950 formalized this relationship. Discussions for furthering the relationship between the State and the Union continued, culminating in the 1952 Delhi Agreement, whereby the governments of the State and the Union 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. Following the adoption of the provisions of the Delhi Agreement by the Constituent Assembly of Jammu and Kashmir, the President of India issued The Constitution (Application to Jammu and Kashmir) Order, 1954, through which Indian citizenship was extended to the residents of the state, and simultaneously the Article 35A was inserted into the Indian constitution enabling the State legislature to define the privileges of the permanent residents
TEXT OF ARTICLE 35 A :
The Constitution (Application to Jammu and Kashmir) Order, 1954. :-
“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.”
VIEWS OF THE THEN PRIME MINISTER OF INDIA PANDIT JAWAHAR LAL NEHRU On Article 35A :
In his statement to the Lok Sabha on the Delhi agreement, Nehru has 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 liberalize 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 in regard to the acquisition of immovable property, appointments to services and like matters. Till then the existing State law should apply. (Read A G Noorani’s article on this Source: Article 35A is beyond challenge)
The BJP, RSS and other Hindutva affiliate groups opposing Article 35A : –
In July 2015, an RSS-backed think-tank called the Jammu & Kashmir Study Centre first came up with the idea to challenge Article 35A in the Supreme Court. A petition was filed in the Delhi High Court against the Article. Later, it was also challenged in the Supreme Court. Mass appeal by RSS to revoke special status to Jammu and Kashmir by invoking the sentiments that constitution of India can’t be amended for Jammu and Kashmir. It’s worth to mention here that as of September 2016, there have been 101 amendments to the Constitution of India since it was first enacted in 1950. 101 amendments are of no issue for RSS think tank but 35A according to them is illegal.
SPECIAL PROVISION FOR OTHER STATES OF INDIA:—
The word Special status propagated by right-wing Indian fidayeen media is a misnomer when it comes to the state of Jammu and Kashmir, as State Subject definition was created and adopted in 1927 by Maharaja Hari Singh, whereas India and Pakistan were born in 1947. So to claim, that India has bestowed any special status to J&K is illogical. There are 11 states till now with special provisions
1.Maharashtra 2.Gujarat 3.Nagaland 4.Assam
5.Manipur 6.Sikkim 7.Mizoram 8.Arunachal Pradesh 9.Goa 10.Andhra Pradesh 11.Telangana
SPECIAL PROVISIONS FOR STATES (ARTICLE 371)
ARTICLE 371 → SPECIAL PROVISIONS FOR MAHARASHTRA & GUJRAT.
President is authorized to provide that Governor of Maharashtra &Gujrat would have special responsibilities for:
Establishment of separate development boards for Vidarbha, Marathwada & rest of Maharashtra + Kutchh & rest of Gujrat. A report on the working of these boards will be placed each year before state legislative assembly. Equitable allocation of funds for developmental expenditure over the mentioned areas. Equitable arrangements providing adequate facilities for technical education, vocational training & adequate opportunities for employment in state services.
ARTICLE 371 – A → SPECIAL PROVISIONS FOR NAGALAND
An act of parliament relating to following matters would not apply to Nagaland unless state assembly so decides:
Religious & social practices of Nagas.Nagas customary law & procedure.Administration of civil or criminal justice involving decisions according to Naga customary law.Ownership & transfer of land & its resources. The special responsibility of governor wrt law & order in the state (after consulting COMs, but his decision will be final) regarding internal disturbances occurring in Naga hills mainly in Tuesang area (Special responsibility ceases if President directs so). Governor has to ensure that money provided by the GOI out of the consolidated fund of India for any specific purpose, is included in the demand for a grant relating to that specific purpose only, not any other. A regional council for Tuensang district, consisting of 35 members should be formed & governor in his discretion shall make all the rules & terms regarding this council. For a period of 10 years, from the formation of the state of Nagaland or for a further period as specified by Governor, on recommendations of the regional council, following provisions would be operative for Tuensang district: Administration of Tuensang district shall be carried on by the governor. Governor in his discretion shall arrange for equitable distribution of money, b/w Tuensang district & Rest of Nagaland, provided by the center.
There shall be a minister for Tuensang affairs in state COMs. The final decision on all matters relating to Tuensang district shall be made by the governor in his discretion. Members in Nagaland assembly from the Tuensang district are not elected directly by the people but by the regional council.
ARTICLE 371 – B → SPECIAL PROVISIONS FOR ASSAM
President may provide for the constitution & functions, a committee of Legislative assembly of the state, consisting of members of that assembly elected from the tribal area of Assam. President can also direct that the governor shall have a special responsibility to secure proper functioning of that committee.
ARTICLE 371 – C → SPECIAL PROVISIONS FOR MANIPUR
President may provide for the constitution & functions, a committee of Legislative assembly of the state, consisting of members of that assembly elected from the hill areas of Manipur.
President can also direct that the governor shall have a special responsibility to secure proper functioning of that committee. Governor should submit an annual report to the President regarding the administration of Hill areas
ARTICLE 371– D → SPECIAL PROVISIONS FOR ANDHRA PRADESH
President is empowered to provide equitable opportunities & facilities for people belonging to different parts of the state in a matter of public employment & education. For above purpose, President may require the state government to organize civil posts in local cadre for different parts of the state & also provide for direct recruitment to posts in local cadre (or in any such educational institution)
President may provide for the establishment of an administrative tribunal in the state to deal with certain disputes, relating to appointment, allotment or promotion to civil posts in the state. Only SC is to exercise jurisdiction over such tribunal which means they are outside the purview of HC (President may abolish the tribunals if he thinks it is not necessary)
ARTICLE 371 – E → SPECIAL PROVISIONS FOR SIKKIM
The legislative assembly shall not less than 30 members + 1 seat from the state in Lok Sabha& 1 in the parliamentary constituency. For the purpose of protecting the rights & interest of different sections of Sikkim population, Parliament is empowered to provide a number of seats in Sikkim administrative assembly for the people belonging to such sections. Governor in his discretion (On the direction of President) have special responsibility for peace & equitable arrangement for the socio-economic development of different sections of Sikkim.
ARTICLE 371 G → SPECIAL PROVISIONS FOR MIZORAM
The legislative assembly shall not be less than 40 members. The act of parliament relating to following matters would not apply to Mizoram unless state assembly so decides :
Religious & social practices of Mizo.Mizo customary law & procedure.Administration of civil or criminal justice involving decisions according to Mizo customary law.Ownership & transfer of land & its resources.
ARTICLE 371 H → SPECIAL PROVISIONS FOR ARUNACHAL PRADESH.
The legislative assembly shall not be less than 30 members. Governor of Arunachal Pradesh, on directions of President, shall have special responsibility for law & order in the state ( May consult with COMs but his decision will be final)
ARTICLE 371 – I → SPECIAL PROVISIONS FOR GOA
The legislative assembly shall not be less than 30 members. Art 371-d will be applicable to both successor states of Andhra Pradesh post bifurcation and provisions have been made in Andhra Pradesh (Re-organisation) Act, 2014 for the same to amend Constitution accordingly. Recently development: Dr. Charu WaliKhanna, the petitioner is a Kashmiri Pandit woman who had married outside caste and settled outside the State of Jammu & Kashmir. She has challenged the notification dated April 20, 1927, issued by the Maharaja Bahadur of Kashmir, which takes away the right of a wife or widow otherwise available to them as state subject unless she resides in State and does not leave the state for permanent residence outside the State.
CONSTITUTIONAL AMENDMENT UNDER ARTICLE 368 ONLY :
There is wide circulation of misinformation in right-wing Fidayeen media about Article 35 A, that it can be introduced in the Indian Constitution only through a constitutional amendment under Article 368, and not through a Presidential Order under Article 370.since article 35A was not passed in parliament it is null and void. The then president of India knew that article 368 is not applicable to Jammu and Kashmir so he bypassed parliament.
Kashmir has not merged with India like rest of states as refreshed by our Sadr-i-RiyasatDr.Karan Singh recently, rather JK signed’’limited’’ instrument of accession with India – this limited instrument of accession was documented which is presented as Article 370 right now and this Article 370 was accepted as a part of the Indian Constitution when it came into force on January 26, 1950, we can say only bridge between India and J&K is Article 370 if tomorrow India decided to scrap this article , J&K will automatically become independent of India . Now we must understand that only two article of Indian constitution is applicable to JK that is Article 1 and article 370, rest of article of Indian constitution like your article 368 is not applicable in JK. We Kashmiris are proud Indians as per Article 1 of the Indian constitution.
PRESIDENT OF INDIA CAN SCRAP ARTICLE 35 A
President of India cannot remove Article 35 A. Article 370 mandated that other provisions of the Constitution can apply to J&K, “subject to such exceptions and modifications as the President may by order specify”, with the concurrence of the state government and the endorsement of the J&K Constituent Assembly. In 1969, the Supreme Court ruled that the President can issue an Order under Article 370 only with the concurrence of the state government
SUPREME COURT OF INDIA CAN SCRAP ARTICLE 35A AND ARTICLE 370
the Supreme Court of India is not having any mandate or power to apply the laws to the state of Jammu and Kashmir on the matters which are not mentioned in the instrument of accession.
In Sampat Prakash (1969), the Supreme Court held that Article 368 of the Indian Constitution, which requires approval by a two-thirds majority in Parliament to amend the Constitution, does not directly apply to J&K. The court held: “Article 368 is not primarily intended for amending the Constitution as applicable in Jammu and Kashmir, but is for the purpose of carrying the amendments made in the Constitution for rest of India into the Constitution as applied in the State of Jammu and Kashmir
STATE ASSEMBLY CAN SCRAP Article 35A
Even the state assembly of JK can’t amend the constitution of JK. Article 370(3) is now obsolete after January 26, 1957, when a new Constitution was enforced in the state and the Constituent Assembly ceased to exist. According to the constitution of JK Part XII, article 147 under the section of ‘’AMENDMENTS OF THE JK Constitution’’ reads ‘’ no Bill or amendment is allowed seeking to make any change in the provisions (Article 370) of the constitution of India as applicable in relation to the State.
The concurrence given by the state government is not absolute. It is subject to clause (2) of Article 370 which provides that if the concurrence is given before the constituent assembly for the purposes of framing the constitution is convened, the laws for which the state government has given its concurrence has to be placed before such Constituent Assembly for such a decision as it may take. Once the Constituent Assembly was convened, the power of state government to give concurrence for other laws has stopped at the very movement. It was left to the Constituent Assembly of Jammu Kashmir to decide what laws would be made applicable to the state of Jammu Kashmir and whatnot as the Constituent Assembly was having this mandate by virtue of Article 370 of Indian Constitution.
The Constituent Assembly after framing the Constitution for Jammu Kashmir, has given the approval for the laws to be made applicable to Jammu Kashmir. Once the Constituent Assembly was put to an end the power of parliament to make law for Jammu Kashmir stopped that movement and with this the provision of Article 370 which authorizes the Jammu Kashmir Government to give concurrence become obsolete that very movement. The Sangh and its affiliated groups have long viewed the Muslim-majority demography of J&K as the primary problem — and believed that settling people from outside the state, with rights to acquire land and property, and the right to vote in Assembly elections is the only way to permanently end the Kashmir dispute. This is why they see Article 35A of the Indian Constitution, a provision that empowers the J&K legislature to define “Permanent Residents” of the state, as a major hurdle. The laws which had been made applicable to Jammu Kashmir from time to time like Abrogation of Autonomy, SARFAESI Act etc and for which the concurrence has been given by the state government is nothing but a fraud committed on Article 370 of the constitution by the successive government to fulfil their own interests and committed a breach of trust with the people of Jammu Kashmir. We Kashmiris had been ignorant of the era of democracy we had forgotten that this is the age of democracy we have now realized gun culture which was thrust on us was a policy of state and non-state politician. We believe the Indian judiciary will not commit any kind of injustice to us.
THE PRESIDENTIAL ORDER 1954 CAN BE REMOVED
Jammu and Kashmir Ex-Chief Minister Mehbooba Mufti has reportedly claimed, at an event in Delhi on 28 July 2017, that there will be no one in the Valley to ‘shoulder the Indian Flag’ if the special constitutional status of Jammu and Kashmir is tampered with, or the Permanent Resident Act (35A) removed. In over six decades, the President of India has issued 41 Constitutional Application Orders that relate to the applicability of the various provisions of the Indian Constitution to Jammu and Kashmir, including, replacing the elected Sadr-e-Riyasat with a Governor chosen by the Union Government and changing the ‘Prime Minister’ of the state to the Chief Minister. Hence, If and changing the ‘Prime Minister’ of the state to the Chief Minister. Hence, If the apex court rules that Art 35A is in violation of the Constitution, such a judgment will have to be made applicable to all the Constitutional Application Orders from 1950 till date J&K high court had ruled in 2015 that Article 370 is “permanent, beyond amendment, repeal or abrogation
REMOVING TEMPORARY PROVISION ARTICLE 370
“The Supreme Court on Tuesday, 3 April 2018 said that Article 370 of the Constitution which gives special status to Jammu and Kashmir is not a temporary provision.
There is no constitutional way to remove Article 370, especially because Article 1 of the Indian Constitution (name and territory of the Union) is applicable to J&K only through Article 370. But if the challenge to the constitutionality of the 1954 Order is successful, all subsequent Presidential Orders will stand automatically invalidated. The residents of J&K were deemed as Indian citizens through these Orders; they were used to extend 94 out of 97 entries in the Union List, and 260 out of 395 Articles of the Indian Constitution, to J&K; and to impose central rule in J&K.
INDUSTRIAL REVOLUTION WILL HAPPEN IN J&K IF ARTICLE 35A IS REMOVED :
Even a layman will not accept this argument because you are suggesting is that an industrialist will come dragging his raw material from central India and south India then manufacture it in Kashmir then drag it back to central Indian market like Delhi, Mumbai, Chennai Kolkata to sell it. Don’t you feel it’s insane to waste money in the transportation of raw material to Kashmir and then selling it?
There is a misconception in the rest of the country that 35-A is a huddle in the economic development of J&K. But the fact of the matter is that we have a provision in our constitution to lease out land for 99 years. Political unrest is a reason for our underdevelopment. Besides, we can’t afford 24-hour electricity for big businesses.Govt of India is not able to revive our own century-old silk factory from last 70 years which was silk manufacturing of world then, how can they develop other industries.
FUNDAMENTAL RIGHTS MUST BE EQUAL FOR EVERY INDIAN :
The first fundamental right of a human being is right to live since 1947 we have lost 6 lac souls, have you probed why 1200 students were blinded by pallets just because they were seeking a political solution to Kashmir dispute. Having said this Part IV and IVA i.e. fundamental rights and directive principles are not applicable to State of Jammu and Kashmir. At last, we will request don’t try to fiddle with the constitution of Jammu and Kashmir and look for a democratic solution.
Dr, Zainulabideen can be reached at zainlala69@yahoo.com
