By Mohammad Imran Pandith
Jammu & Kashmir is claimed by India as an integral part of the Dominion of India based on Instrument of Accession entered by its ruler Maharaja Hari Singh on 26th October 1947 and subsequent ratification of that Instrument by the J&K Constituent Assembly on 5th November 1951. The Maharaja ceded control over defence, external affairs and communications (the ‘ceded subjects’) to the Government of India. The vehicle required to transport the provisions of the Indian Constitution became a compulsive necessity and it is relevant in the form of Article 370.
Insertion of article 35 A into Indian constitution:
The Article 370 of the Constitution of India and the concomitant Constitutional Order of 1950 formalised this relationship. Discussions for furthering the relationship between the State and the Union continued, culminating in 1952, the historic Delhi Agreement between Nehru and Sheikh containing 10 points, one of which was that the state legislature would have the powers to regulate the rights and privileges of permanent residents or state subjects as defined in the 1927 State Order as was issued by Maharaja. It was agreed that in accordance with Article 5 of the Indian constitution persons who have their domicile in J&K shall be the citizens of J&K. It was further agreed that the state legislature shall have power to define and regulate the rights and privileges of the permanent residents of the state more especially in regards to the acquisition of immovable property. 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 J&K state, and simultaneously the Article 35A was inserted into the Indian constitution enabling the State legislature to define the privileges of the permanent residents.
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 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.”
Nehru’s Statement about Delhi Agreement
In his statement to the Lok Sabha on the Delhi agreement, Nehru 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 liberalise 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 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.
Some Historical and Legal facts of Article 35A
In the period between 1889 and 1905, Maharaja Pratap Singh was temporarily dispossessed from the throne. During this period there was a great influx of outsiders from the neighbouring states into the State of Kashmir. Many of the outsiders were appointed in a large number of administrative posts. This influx of outsiders into the State lead to an agitation chiefly led by such Pandit leaders and reformists as Jai Lal Kilam , Shanker Lal Koul , Jia Lal Jalali with a slogan: “State for State’s People” that took the shape of a National Struggle. (One should remember that it was the move of Maharaja to introduce Urdu language at the cost of Persian. As the natives hardly knew Urdu, Maharaja thought it conducive to recruit non-state subjects who could work through the medium of Urdu and chair important administrative posts).These agitations compelled Maharaja Hari Singh to issue an order defining the term ‘Mulkis”, i.e. the State Subjects. Under the said Order the State Subjects would be preferred over outsiders in cases of employment in the Government services. The said order also provided that outsiders, from now onwards, would be unable to purchase immovable property within the State of Jammu and Kashmir. On 20th April 1927 the Maharaja issued a notification bearing No. I-L/84, defining the State Subjects. This regulation was meant to protect the people of Jammu and Kashmir from outsiders coming from the neighbouring states, but discrimination within the State still continued, especially against the Muslim majority.
So there after, 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 as was passed by maharaja. It is to be mentioned here that any one domiciled in the State of Jammu and Kashmir prior to death of Ranbir Singh (1880) was given the state subject. The 1927 hereditary State Subject Order granted to the state subjects the right to government office and the right to land use and ownership, which were not available to non-state subjects.
There are no two ways about the fact that Article 370 is the part of Indian Constitution as it was enacted on 26 November1949 and Article 35A inexorably flows from the power given to the President under the aforesaid Article. It is now more than 51 years old trite law and only sanctifies the Maharaja’s Notification of 20 April 1927 which defines state subject and their right to hold the property. Article 6 of the Constitution of J&K puts its seal on that notification. Pertinent to mention that Constitution Application Order of 1954 is an offshoot of the mechanism provided under 370 above for making the working of the constitutional relationship between the state and the centre possible. The Drafting Committee presented its report to the J&K Constituent Assembly on 11 February 1954 which recommended certain amendments to the Constitution of India in its application to J&K. Article 35A was one of them. The report was adopted by the Constituent Assembly of the state and the amendment was incorporated by the Presidential Order of 1954.
The recent judgment of J&K High Court on 16 July 2015 regarding SARFAESI Act is of historic significance for its cogent analysis of Article 370 and 35A. The court while taking a recall of the constitutional history from the time of Maharaja held that “Parliament had no legislative competence to make laws in respect of J&K, which would affect the interest of the state subjects of the state defined by Section 6 of the J&K Constitution qua their immovable property.” The Court observed that the constitution of J&K is sovereign in character, and the state assembly exercises sovereign power to legislate laws. In the community of the states in India, in view of the law laid down by the honorable Supreme Court, the State of J&K occupies a distinct, unique and special position. Thus, in law , the state of J&K constitute a class in itself and cannot be compared to the other states. So Article 35A is based on solemn pact between the Union and the State and is a result of mechanism which the Constitution itself provides to overcome the constitutional deficiencies created by the conditional accession of the state and therefore cannot be unilaterally altered.
The Order of 1954 made serious deviations and altered the existing position of the state significantly. The death of Constituent Assembly followed with itself the power of it being altered by any other authority, meaning thereby, it is not only 35A but all the extension Orders which cannot be scrapped by President because of non-existence of the ratifying authority and hence for any such step the requirement will be that of the formation of new constitution which for sure will be something called extra constitutional measure and would in turn mean the death of the existing constitution that will ultimately take the state back to the position it had been in pre 1947.
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