A large number of political and defence analysts attribute instability in Jammu & Kashmir (J&K) to India’s inability to fully integrate the State into the Union. The challenges towards such integration have historical roots, dating to the circumstances under which the State, led by Maharaja Hari Singh, acceded to India, following Pakistan’s attempts to annex the State through force. Historically, Pakistan has been also consistently providing support to terrorist and to the separatist movements in J&K and has also extended such support to promote terror in other parts of the country, in furtherance of its own interests. The third factor is the imposition of Article 370 in the Constitution of India and the addition of Article 35A, through the provisions of Article 370 of the Constitution of India.

Article 35-A of the Constitution of India is an Article that empowers the J&K State’s Legislature to define “permanent residents” of the State and provide special rights and privileges to those "permanent residents". It was added to the Constitution of India through a Presidential Order, i.e., the Constitution (Application to Jammu & Kashmir) Order, 1954, issued by the President of India on May 14, 1954, “in exercise of the powers conferred by” clause  (1) of Article 370 of the Constitution of  India, with the concurrence of the Government of the State of Jammu & Kashmir. This special status granted to the State of Jammu & Kashmir is believed to be the prime inhibiting factor in the complete integration of the State with the Union.

Brief History
During British Rule, the map of India consisted of territories that came directly under the Crown, and also 565 Princely States, which, while not being part of the Crown possessions, were tied to it in a system of subsidiary alliances. The Princely States had control over their internal affairs, but control over defence and external affairs rested in the hands of the British Government, under the Viceroy of India. In addition, there were several colonial enclaves controlled by France and Portugal. The Government of India Act, 1935, introduced the concept of the Instrument of Accession, wherein, a ruler of a Princely State could accede his kingdom into the ‘Federation of India’. Between May 1947 and the transfer of power on August 15, 1947, the vast majority of States signed Instruments of Accession.

This was facilitated by the Congress, with its leaders such as C. Rajagopalachari arguing that as paramountancy “came into being as a fact and not by agreement,” it would necessarily pass to the Government of independent India, as the successor of the British. A few, however, held out. Amongst them were Hyderabad and Kashmir, which declared that they intended to remain independent. Hyderabad had a Muslim Ruler and Muslim nobility in an overwhelming Hindu majority State. After “Operation Polo,” an Indian military action to restore order in the State, Hyderabad acceded to India and was absorbed into the Union. The State of J&K, however, posed a challenge of an altogether different nature.

1947: The Situation in J&K

At the time of the transfer of power, the State of J&K was ruled by Maharaja Hari Singh, who had announced his intent to remain independent. Sheikh Abdullah, the leader of Kashmir’s largest political party, the National Conference, was opposed to Hari Singh’s Rule and was vociferously demanding his abdication. Pakistan, in the meantime, tried to force the hand of the Maharaja and sent in raiders, assisted by the Pakistan Army, to annex the State by force. Being confronted by a militarily hopeless situation, the Maharaja sought India’s help to push back the invaders. India required the signing of an Instrument of Accession and setting up of an interim Government headed by Sheikh Abdullah in return. The Indian Army was airlifted to Srinagar and the raiders were halted a few miles from the city.

Then, in a series of heroic actions, the Indian Army pushed back the Pakistan Army-assisted raiders till the onset of winter halted the operations. When the Constitution of India came into force on January 26, 1950, special provisions were made for the State of J&K, in the form of Article 370 of Constitution of India, which was a temporary provision and remains so till date. Article 35-A is a provision incorporated in the Constitution of India giving the Jammu & Kashmir Legislature a carte blanche to decide who all are "permanent residents" of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

Deceitful Incorporation of Article 35-A

Article 35-A was incorporated in the Constitution of India in 1954 by an order of the then President of India Dr. Rajinder Prashad on the advice of Pt. Jawahar Lal Nehru Cabinet. The controversial Constitutional (Application to Jammu and Kashmir) Order, 1954 followed the 1952 Delhi Agreement entered into between Pt. Jawahar Lal Nehru, the first Prime Minister of India and the then Prime Minister of Jammu & Kashmir Sheikh Mohammad Abdullah, which extended citizenship to the "State Subjects" of Jammu & Kashmir. So Article 35-A was added to the Constitution of India as a testimony of the special consideration to the Indian Government accorded to the "permanent residents" of Jammu & Kashmir.

The Parliamentary route of law making was bypassed when the President of India incorporated Article 35-A into the Constitution of India. Article 35-A is a rarest example of invisible State meddling with the Constitution of India where it has no constitutional mandate. Article 35A was neither a part of the draft Constitution nor a part of the adopted and enacted Constitution of India. This Article was added to the fundamental rights of the Constitution by a Presidential Order, viz., Constitutional (Application to Jammu and Kashmir) Order 1954 which extended the application of various provisions of the Constitution of India to Jammu & Kashmir with such modifications, exceptions and alterations with the concurrence of the Government of the State. Article 368 of Constitution of India was also extended in its application to the State but with a proviso to the effect that “no such amendment shall have effect in relation to the State of Jammu & Kashmir unless applied by order of the President under clause (1) of Article 370 of Constitution of India”. Be that as it may, from the reading of this provision it cannot be construed that the President of India is empowered to exercise the constituent power of the Parliament under Article 368 of Constitution of India to add any provision in the fundamental rights part in its relation to the State of Jammu Kashmir.

The CO 1954, which superseded Constitution (Application to Jammu and Kashmir) Order 1950 of 26 January 1950, was issued under the permissible limits of Article 370 of Constitution of India - a temporary constitutional provision relating to the State of Jammu Kashmir. Article 370 of Constitution of India authorizes the President of India to extend the provisions of the Constitution of India in its relation to the State of Jammu & Kashmir as the President may by order specify. Article 370 (1) of Constitution of India enjoins four clauses, viz., clauses (a), (b), (c) and (d). Article 370 (1) (a) of Constitution of India reads as: “Notwithstanding standing anything in this Constitution, the provisions of Article 238 of Constitution of India shall not apply in relation to the State of Jammu and Kashmir”; Article 370 (b) of Constitution of India reads as: “ the power of Parliament to make laws for the said State shall be limited to (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for the State”; and (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify;

Article 370 (1) (c) reads: “the provisions of Article 1 and of this Article 370 shall apply in relation to that State”. Article 370(1)(d) of Constitution of India reads: “such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-section (b) shall be issued except in consultation with the Government of the State; Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government”.

Analysis of Article 35A - Constitutional anomalies: a case for Constitutional Conviviality

The addition or deletion or modification to any part of the Constitution of India amounts to an amendment to the Constitution of  India. The power to so amend rests in Parliament as per procedures laid out in Article 368 to the Constitution of  India. It is a fact that Article 35-A was never presented before the Parliament which ipso facto means that the then President bypassed the amending procedure as laid out in the Constitution and usurped the functions of Parliament.

The Muslim refugees from Xinjiang and Tibet, who had migrated to Kashmir following the Chinese occupation of their countries in 1949 and 1959, respectively, have been granted “state subject” status, along with voting rights in the Assembly by the J&K Government. More worrying is the fact that this amendment has been concealed from the public gaze through subterfuge, by not mentioning the same in the text of editions of the main Constitution. As an example, when a new Article on the 'Right to Education' was added to the Constitution of India after Article 21, it was named Article 21A and it came up in between Article 21 of the Constitution of  India and Article 22 of Constitution of India. New copies of the Constitution of India subsequently had Article 21, Article 21A and Article 22 in sequence.

Why then does Article 35-A find no place in the copies of the Constitution printed after its enactment, when it should have been placed between Article 35 and Article 36? It is also not found in the list of Amendments to the Constitution of India. For some unfathomable reason, Article 35-A appears in the Constitution only as an Appendix, as a result of which even legal luminaries are not aware of its existence.

It is, thus, clear and lucid that Article 35-A was not added to the Constitution of India by following due procedures prescribed for amendment of the Constitution under Article 368 of Constitution of India. The Executive organ has brought it though the right of amendment to the Constitution lies with the legislative organ. It not only violates the constitutional procedures established by law but also against the basic structure of the Constitution of India. Addition or deletion of an Article amounts to amendment to the Constitution, which could be done only by Parliament as per procedure, laid down in Article 368 of Constitution of India. However, Article 35-A was never presented before the Parliament of India.

This means the President had bypassed the Parliament in his order to add Article 35-A. This also means that the amending power of Parliament under Article 368 of the Constitution of  India was abridged in its application to Jammu & Kashmir. Article 35-A was included “surreptitiously” in the Constitution of India than by following the ordinary procedure of amendment under Article 368 of the Constitution of India, and is, therefore, “constitutionally vulnerable”. The President of India, by an Executive Order, added the Article 35A in the Constitution though Article 370 of Constitution of India does not confer Legislative powers to the President to amend the Constitution of India. Article 35-A not only violates constitutional procedures established by law but also the fundamental right guaranteed under Articles 14, 15, 16, 19, 21 of the Constitution of India. Article 35-A is a big 'fraud" not only with the Constitution of India but with the Parliament of India too.

Why Article 35A Must Go

The classification created by the Article 35-A suffers from the violation of Article 14 of Constitution of India. Equality before the Law and also against basic structure of the Constitution of India. The non-resident Indian citizens cannot have the rights and privileges, same as permanent residents of Jammu & Kashmir. It facilitates the violation of the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property, if the woman marries a man not holding 'Permanent Resident Certificate'. Therefore, her children are not given Permanent Resident Certificate and, thereby, considering them unfit for inheritance – not given any right to such a woman’s property even if she is a permanent resident. It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste and Scheduled Tribe people who have lived there for generations.

The Dalits and Valmikis who were brought to the State of J&K between 1950-60, were given 'Permanent Resident Certificates' on the condition that they and their future generations could stay in the State only if they continued to be scavengers. And even after six decades of service in the State, their children are safai-karmacharis and they have been denied the right to quit scavenging and choose any other profession. The industrial sector and whole private sector suffers due to the property ownership restrictions. Good doctors do not come to the State for the same reason. Children of non-state subjects do not get admission to State Colleges and Universities.

It ruins the status of West Pakistani refugees, who vote in the Lok Sabha elections, however, are barred from voting in State Legislative Assembly elections. Being citizens of India, they are not stateless persons, but being non-permanent residents of Jammu & Kashmir, they cannot enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu & Kashmir. Their status is unequal amongst the equals. The basic aim and object of equality is rule against arbitrariness; arbitrariness and equality are sworn enemies to each other and do not see eye to eye each other. Equality is a means to achieve the ends of Rule of Law to serve the Rule of Lfe, which seems to be a naught in the case of refugees of West Pakistan settled in the State of Jammu Kashmir.

Had they been settled in any part of the territory of India other than Jammu & Kashmir, they ought not to have been the sufferers. In the background of this submission, it appears that Article 35-A does not seem to be compatible with the basic feature of the Constitution of India. Article 35-A is even otherwise violative of the integrity of the nation as enshrined in the Preamble of Constitution of India.

Thus, the classification created by Article 35A suffers from the vice of “intelligible differentia”; this differentia is artificial as it has no rational nexus/relationship with the basic object of the Constitution equality. Since Article 35-A is a mishmash of the textual Constitution of India and does not technically and legally qualify to be an Article of Constitution of India, and having already done enough damage and promoted separatists ideologies, so it must be declared as non-existent. For the good of the people of India and for the residents of J&K, Article 35-A must be repealed forthwith as it will pave the way for the development of the State of Jammu & Kashmir and its total integration with the Union of India.

Written By: Dinesh Singh Chauhan, Advocate
J&K High Court of Judicature, Jammu
Email: [email protected], [email protected]