About Article 35 A Prelude, enactment & aftermath



Last Tuesday after the column outlining article 35 A was published, out of responses, an interjection by a knowledgeable friend well versed in law related that Article 35 A rather than being an amendment of Article 35 of Indian constitution was enacted afresh. He is both right and wrong. Right in the sense that Article 35 A does not refer to Article 35, hence may not be called an amendment, as also the fact that ‘Drafting Committee’ of Jammu & Kashmir Constituent Assembly suggested, ‘After article 35, the following new article shall be added’ thus a new article was enacted:

’35 A. Notwithstanding anything contained in this Constitution, no existing law in force in State of Jammu and Kashmir, and no law in force in the State of Jammu and Kashmir and no law henceforth enacted by the legislature of the state—

(a) defining the classes of persons who are, or shall be, ‘permeant residents of the State of Jammu and Kashmir’; or

(b) conferring on such permeant 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 scholarship and such other forms of the aid as the State government may provide,
shall be invalid on the ground that it is inconsistent with  or takes away or abridges any rights conferred on the other citizens of India by any provisions of this Part. 

Having related that interjection is right in the stated sense, it is wrong as per the prelude to Article 35 A.  The said article was enacted after amendments/omissions/additions, whatever their entitlement in legal terms amounts to were suggested in, ‘Report of the Drafting Committee Presented on 11 February 1954, recorded in ‘Jammu and Kashmir Constituent Assembly Official Report Part I, Volume I, pp-837-48. The report was signed in Jammu on the said date by members of drafting committee—G.L.Dogra, Mir Qasim, D.P. Dhar, Ghulam Rasool Renzu and Harbans Singh Azad. 

Vis-à-vis article 35 A, ‘Annexure to the Report of the Drafting Committee’ reads, ‘references to the commencement of Constitution shall be constructed as references to the commencement of Order’. We may focus on Article 35 to comprehend the suggested amendment: Notwithstanding anything contained in this Constitution, Parliament shall have and the Legislature of a State shall not have, power to make laws [read with reference to Articles 16/3, 32/3, 33, 34 of the Indian Constitution]. Reference to ‘commencement of Order’ as recommended by Drafting Committee was whetted in the entitlement of Article 35 A, ‘The President’s Major Order under Article 370, dated 14 May 1954’.  

Drafting Committee further recommended, in clause (a) (i), the words, ‘clause (3) of article 16, clause (3) of article 32’ shall be omitted. It may be remembered that the said articles 16/3 and 32/3 respectively pertain to, equality of opportunity in matters of public employment and judicial intervention in enforcing rights. Neither does 16/3 nor 32/3 find mention in Article 35 A. In Article 16/3 parliament by taking employment outside the purview of State Legislature obviously wanted to ensure equality of opportunity without prejudice to employees’ residential status in a State or Union Territory.  By omission of this provision in Article 35 A, rights of residents of J&K State stand protected, while non-residents may not claim employment as a matter of right. By omission of 32/3 judicial intervention cannot be invoked as a matter of right in matters of employment or acquiring property, as it remains restricted to residents of J&K State. 

35 A aftermath—with Article 370 in public domain, Article 35 A remained in shade, though contrary to public perception JK residence provisions, hence demographic safeguards remain enshrined in it. Much hyped and much eroded as well, Article 370 is a constitutional bridge provided to ease Delhi-Srinagar constitutional interplay until final resolution of disputed status of J&K State.

Arun Jaitley, BJP legalist, high in party hierarchy, apart from other Sangh Parivar activists has on several occasions contested Articles 370 and 35 A in public forums, calling Article 370, “instrument of oppression and discrimination against Indian citizens” [Hindustan times news report—Dec: 05, 2013]  He also noted, “It is discriminatory and violative of fundamental rights. “ Article 35A” relates Jaitley, “violates the basic structure of the Constitution. I wonder if its constitutional validity will be challenged at some point of time.” Two years ahead of Jaitley being quoted, BJP is in powers on its own without coalition pressures, and Jaitley is one of the major players in GOI, so the signs are ominous. Forgotten remains the fact that maintenance of special status until final resolution of the disputed status is India’s national commitment. Arun Jaitley also overlooks the fact that his father-in-law—Girdhari Lal Dogra was first among the signatories in the ‘Drafting Committee’ that suggested enactment of a new law, that emerged as Article 35 A, wherein amendments/omissions/additions were sought to provisions of Article 35 of the Indian constitution.  

Erosion of constitutional safeguards, one after another resulting in breach of trust has resulted in alienation that stays, notwithstanding the hyped up electoral turnout. The turnout has reasons exactly the opposite of what is propagated. The electorate simply opts for day to day governance. It may not be taken as an endorsement of craftily worked out status quo. Final resolution stays fundamental to what is in international forums a dispute, pending resolution.

Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival