Dr. Waseem Ahmad Sofi
As a final verdict by the Supreme Court is awaited on a special constitutional provision- Article 35A, conditions have worsened in Jammu and Kashmir. Protesters and leaders in the Valley have joined hands seeking the squashing of the petition challenging Article 35A in the said court. There is huge pressure to maintain peace in an already tense state. The situation is tenser even outside the state against the Kashmiri’s after more than 40 CRPF personnel died in suicide bomb attack on their convoy on 14th February at Lethpora, Pulwama. Therefore, any adverse order against the provision could give further impetus to violence in the Valley. But the question is: what the provision is? What is it for us? And why it came up into news? In this essay, an attempt has been made to answer these controversial questions.
Initially, Article 35A came up into news only when a Kashmiri woman, “Charu Wali Khan” filed a petition to change the constitutional provision as she wanted succession rights in the state though she is settled outside. This led to a major controversy. The administration here filed a counter petition, but the center did not do so. It submitted before the Supreme Court that it is ready to discuss on scrapping of Article 35A which does not allow people from outside Jammu and Kashmir to work, settle or own property in the state. The J & K BJP cadre is very vocal about repealing the Article 35A and the NDA Government also wants to have a larger debate over the Article 35A.
Next, it was debated only when an NGO, “We the Citizens”, filed a writ petition to strike down Article 35A.The petitioner in the Supreme Court now makes two basic arguments. Firstly, it challenged 35A in Supreme Court on the grounds that, it was not added to the Constitution through an amendment under Article 368. Even assuming that the President possessed this power, the petitioner asserts, Article 35A infringes the Constitution’s basic structure. Both these claims, however, suffer from fundamental flaws.
Article 35A was inserted into the Constitution as part of a raft of amendments made through a Presidential Order-1954, imposed under Article 370. Broadly, the provision empowers Jammu and Kashmir to not only define a class of persons as constituting “permanent residents” of the State but also allows the Government to confer on these persons special rights and privileges with respect to matters of public employment, acquisition of immovable property in the State, settlement in different parts of the State and access to scholarships or other such aids that the state administration might provide. The Article further exempts such legislation from being annulled on the ground that they infringe one or the other of the fundamental rights guaranteed by the Constitution. As we know, Article 370 is as much a part of the Constitution as Article 368. The framers were deeply cognizant of the fact that the Constitution accorded Jammu and Kashmir special and exceptional status is free of any doubt.
It particularly becomes clear from the address made by Gopalaswamy Ayyangar, the chief drafter of Article 370, to the Constituent Assembly on October 17, 1949,“Kashmir’s conditions are special and require special treatment, adding, “it is one of our commitments to the people and the Government of Kashmir,” that, in matters outside the scope of the Instrument of Accession no additions would be made “except with the consent of the Constituent Assembly which may be called in the state for the purpose of framing its Constitution.”At this instant, can Article 35A of the Constitution be struck down? If yes, should it be?
These questions, there’s little doubt, are fraught with political meaning but when we look beyond the interests of politics, the issues aren’t especially contentious. Any other verdict, which so much as entertains the notion that Article 35A is expendable, will impinge on basic tenets of constitutional interpretation, and will damage the most solemn promises that lie at the heart of the Indian federation. In addition, India’s Constitution, as we know established an asymmetric federal form of government, in which some states enjoy greater autonomy over governance than others. This asymmetry is typified by Article 370.
In its original form, Article 370 accorded to J & K a set of special privileges, including an exemption from constitutional provisions governing other states. What’s more, in accord with Jammu and Kashmir’s Instrument of Accession, it restricted Parliament’s powers to legislate over the State to three core subjects- Defence, Foreign Affairs and Communications. Parliament could legislate on other areas only through an express Presidential Order, made with the prior concurrence of the state administration. Where those subjects went beyond the Instrument of Accession, the further sanction of the State’s Constituent Assembly was also mandated.
Further, Article 35A is only a clarificatory provision and itself does not confer any special power. The order has also been used to override the provisions of the State Constitution. If the said article is scrapped, all the 41 subsequent Presidential orders may then become susceptible to legal challenges. The residents of Jammu and Kashmir were deemed as Indian citizens through these Presidential Orders. Presidential Orders were used to extend 94 out of 97 entries in the Union List as well as to 260 out of 395 Articles of the Indian Constitution to the State and even to impose Central rule in Jammu and Kashmir. Thus, Article 35A has not only a constitutional or legal issue, it has larger socioeconomic and political issue. If Article 35A is removed, it could mean the snapping of a fragile pact between the Centre and the state, and the end of the road for a certain politics in Kashmir. To be sure, Article 35A protects the demographic status of the Jammu and Kashmir in its prescribed constitutional form. In the last 70 years, demography of Kashmir Valley has remained unchanged even as Hindu majority in Jammu and Buddhists in Ladakh have rights to buy property and settle in the Valley. Finally, it may be stressed that the conspiracy to remove Article 35-A is essentially a trigger for next General Election-2019 as well as the agenda of communal, divisive forces that want to thrive on uncertainty, discord, hatred and hostility. Meanwhile, the administration here including political parties, regional political parties intelligentsia, civil society, and so on should take the case very seriously, and not depend on hollow assurances by the Centre. They should oppose the writ petition regarding the Article 35-A and contend it in the Supreme Court vigorously.
The author teaches Political Science at the Government Degree College, Gool and can be reached at : firstname.lastname@example.org