Saadat Bilal Khaki
Article 370 of the Indian constitution grants special autonomous status to the state of Jammu and Kashmir and the article is drafted in Part XXI of the Indian Constitution. Article 370 (though originally Article 306-A) was drafted by Gopalaswami Ayyengar in close consultation with Sheikh Mohammad Abdullah and this Article of the Indian constitution limits the powers of the Indian Union Parliament to the following matters: defense, external affairs, [currency] and communication as specified in the Instrument of Accession, that governs the accession of the J&K state to the dominion of India. Article 370 embodied six special provisions for Jammu and Kashmir: Exempting the State from the applicability of the Constitution of India and having its own constitution, Limiting the Central Legislative powers to three subjects of Defense, Foreign affairs and Communication, Constitutional powers to be extended only with the concurrence of State Government, the ‘concurrence’ was only provisional to be ratified by the State’s Constituent Assembly.
Once the State Constituent Assembly finalized the scheme of powers and dispersed, no further extension of powers was possible, Article 370 could be abrogated or amended only upon the recommendation of the State’s Constituent Assembly. Article 370 was gradually eroded with the passage of time and the Constitutional expert A.G.Noorani in his book, “Constitutional History of Jammu and Kashmir” has elaborated upon the Article in detail; and in his article in Greater Kashmir, “Deception on Article 370” dated 4th July 2016, he says, “Far from giving Kashmir a preferred status over the other States, it has been put in a position inferior to them” and further enlightening us on the sensitive topic, he describes how article 370 has been reduced to an empty shell by the 47 Orders unconstitutionally made by the President of India for 50 years on the advice of the Government of India; from 1954 to 1994 and how On 4 December 1964, the then Union Home Minister, G. L. Nanda, urged the Lok Sabha not to talk of repeal of Article 370 and explained that Article 370 “is a tunnel. It is through this tunnel that a good deal of traffic has already passed and more will. Nothing has changed.”
Article 35 A was added to the Constitution of India through a Presidential Order. This article empowers the Jammu & Kashmir State Legislature to define, “permanent residents” and to protect their rights in terms of employment, property and scholarship or aid by government organization. The main difference between Article 370 and Article 35A is about the subject where Article 370 protects and grants special status to the State of Jammu & Kashmir making separate law for the governance of the State while as Article 35A protects the rights of the “Permanent Residents”. It is highly significant that New Delhi staged the coup of 8 August 1953 at Nehru’s instance presented its Report to Jammu & Kashmir Constituent Assembly on 11 February 1954. The Report recommended certain amendment to the Constitution of India in its application to Kashmir and Article 35A was one of them. This Report was signed by Girdhari Lal Dogra, Mir Qasim, D. P. Dhar, Ghulam Rasool Renzu and Harbans Singh Azad. It was adopted by the Assembly on 15 February 1954 and the amendments were incorporated in the President’s Order of 14 May 1954 entitled The Constitution (Application to Jammu & Kashmir) Order 1954 and it added Article 35A and it is mentioned in detail in the application for impleadment of the writ petition.
Writ Petition and Application for Impleadment:
The Delhi based NGO, “We the Citizens” filed a petition demanding repealing of the Article 35A and terming it “Unconstitutional” in nature as it promotes gender bias and discrimination. The matter was referred to larger bench owing to the sensitivity of the case, on which the court agreed and a three bench judge will be hearing the case. Since the admission of the petition in the Supreme Court, new political developments started unfolding in the state of Jammu & Kashmir. Every Legislator, professional, individual, including separatists, Opposition parties, civil societies in the state of Jammu & Kashmir are concerned with the safeguarding of this special status. Lawyers (the most important professionals in this issue, as they understand legal compulsions and sensitivity more accurately in their professional capacity) are coming to front and ensuring all legal support whatever they can provide and by whatever means.
Since the battle has started on the legal turf, many think-tanks have suggested that it should be fought on that very turf under the provisions of law. In this regard, the application for impleadment is made by Rao Farman Ali and 4 ors on 28 of August 2017 represented by Senior Advocate of Indian Supreme Court Dr. Colin Gonsalves (Alternative Nobel Prize winner 2017) along with his team including Advocate on Record (AoR) Satya Mitra , seek the dismissal of this Writ Petition. The first ground on which the dismissal is sought is that the petitioners are overtly representing the political aspiration of the far right, and together with the central government`s hard stance on Muslims and minorities are seeking political advantage. This was not disclosed in the petition and it was made to appear as if the petitioners are merely a group of citizens who suddenly came together and decided to challenge Article 370 and Article 35A of the Constitution of India. Though any political party can file a petition of this nature but law requires transparency and anything concealed is considered fatal to a public interest petition. Further, the application for impleadment rejects the claim of the Petitioner, Dr. Charu Wali Khanna that her family had migrated from Kashmir during Afghan rule (1753-1819) as she fails to provide any documentary evidence proving her J&K Citizenship and application of impleadment supports it with an article in Indian express dated 22-08-2017 which says the story of Dr. Charuwali Khanna (Petitioner, We the Citizens) as “anecdotal evidence”.
For the sake of impleadment of the writ petition, the applicants have attached the appendices describing the word, “State Subject” as described by his Highness the Maharaja Bahadur based on the His notification of 20 April 1927, which was issued at the instance of Kashmiri Pandits who feared an influx from Punjab. This notification of state subject was used down the line 25 years when the Delhi Agreement was signed by the Centre and State of Jammu and Kashmir on July 24, 1952, and under this agreement, the Jammu and Kashmir State was given a special status under the Indian Constitutional frame work (Article 2 of the Constitution itself).
“It was agreed therefore 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 regard to the acquisition of immovable property, appointments to service and like matters. Till then, the existing State law would apply. Article 35A is based on a solemn pact between the Union and the State and cannot be unilaterally altered. Furthermore the application for impleadment of the writ petition is supported by letter dated 6 September 1952 by then President of India from Shimla where he (Dr. Rajendra Prasad) writes to then Prime Minister of India (Jawaharlal Nehru) that:
“… Article (370) being in nature of an exception to the application of Constitution of Jammu and Kashmir, abrogation of the Article would result in the whole Constitution becoming applicable to State of Jammu and Kashmir without any exception of modification. But, Article (370) itself has been peculiarly worded for paragraph (c) of clause (I) of that Article expressively applies proviso of Article and of that Article to the State. In fact, it is because of this application of Article 1 (of Indian Constitution) to the State that the State is included with the territories of the Union. The abrogation of Article 370 abrogates along with application of Article1 (Indian Constitution) to the State with the result that the State ceases to be part of the territories of India…”
The applicants are guided by the legal position and article by A. G. Noorani “Article 35-A is beyond challenge” (Greater Kashmir, 13 Aug 2015) and are adopting them as well which explains Article 371-A of the Constitution of India gives special status to the State of Nagaland. This provision inserted in 1962 explicitly bars the Parliament of India from making any law in respect of “ownership and transfer of land” in Nagaland and explains that the ownership and transfer of land and “its resources” shall apply to the State of Nagaland unless the legislative Assembly of Nagaland by a resolution so decides.
The write up further goes on saying that the Article 371 G on Mizoram gives special status to the State of Mizoram and explicitly bars the Parliament of India from making any law in respect of “ownership and transfer of land” in Mizoram and explains that the ownership and transfer of land shall apply to the State of Mizoram unless the legislative Assembly of Mizoram by a resolution so decides. The Constitution of India is studded with special provisions which thus confer “special status” on certain States; of course, they vary in degrees for historical reasons. For example: Assam, (Art. 371B), Manipur (Art. 371C), Andhra Pradesh (Art. 371D), Sikkim (Art. 371F), Arunachal Pradesh (Art. 371H), and Goa (Art. 371I).
Will these amendments also be challenged as being violation of “the basic structure” of India’s Constitution? However, while they were all enacted under Article 368 by Parliament in exercise of its amending power. Article 370 is part of the Constitution of India and Article 35A flows inexorably from it. If some people single out only Jammu & Kashmir for hostile attention because of Article 370 and 35A of the Constitution of India, it is for reasons not hard to seek.
The applicants claim that the 51-page petition filed by “We, the Citizens” in the Supreme Court on 23 July 2014 is full of factual errors of the crassest kind, and far-fetched arguments which are manifestly absurd and are discussed in detail by the applicants. The legal argument is three-fold. First, the President cannot by-pass Parliament’s Amending power, under Article 368, by making an Order under Article 370. Secondly, he cannot add a new provision Article 35A. Lastly, it is violation of “the basic structure” of the State’s Constitution as it violates Article 14, the guarantee of equality before the law. All three are groundless. Applicants, therefore, pray this Honorable Court that:
a. the applicants be impleaded in the above mentioned petition as party respondents; and
b. Any other order deemed fit and proper in the facts and circumstances of this case is passed.
What would be the consequences of abrogation of Article 35-A or Article 370 of the Constitution? If the abrogation of Article 35A or Article 370 takes place the Article 1 of the Indian Constitution ceases to be applied on the State of Jammu & Kashmir and shall be in contravention to instrument of accession.
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