Article 35-A: The cacophony of clamor

Rising Kashmir

Article 35-A: The cacophony of clamor

August 30, 2018

ShefanJahan Gazi

“Humanity not legality is the quintessence and conscience of the Courts’ functionally,”Winston Churchill.

As the date of the hearing draws near, the tension looms large in the State. To add to the misery and cacophony of clamor against Article 35A and Article 370 of the Constitution of India, the Apex Court is receiving petitions one after the other. It is simply not that hard therefore to perceive the roguery and the prejudiced posture of these ‘nationalist’ petitioners.

All these petitions are schematic vendetta against the sensitivities of the people of the State of J&K – high on the RSS backed BJP agenda; a modus operandi of crassest ignorance and arrogance obliging to decide the fate of the 70 year old dispute not via a conciliatory political process but by seeking an indulgence of the highest court of judicature, overconfident of a judicial interpretation favorable to their cause.

The obsession with Kashmir is so great that more than often the people of this unfortunate land are forgotten!

This time again at the mere mention of dates hearts pulsate. Amidst the alarm and trepidation the mainstream parties, the Hurriyat and the common masses of the State – all irrespective of their different idiosyncrasies have come together albeit sharing the same emotional kinship to the State that is Jammu Kashmir of which all of them are the state subjects(read permanent residents).

The real challenge before the Hon’ble Supreme Court therefore is not legal or philosophical, but it is purely a political challenge, which the Hon’ble Court could have declined to assert upon, but of course jurisprudence demands fair hearing whatsoever the outcome is.

By the Treaty of Accession signed by the monarch, Maharaja Hari Singh had ceded his sovereignty only partially with respect to only three matters, viz; External Affairs, Defense and Communication. The Parliament of the Union of India had thus been given power to make laws for the State only in respect of these three matters; its jurisdiction was thus restricted. Other matters of internal administration remained with the Maharaja, and his powers were un-fettered.

In the year 1949, Dr. Karan Singh who was the heir and had been declared Yuvraj by the Monarch, nominated four representatives to the Constituent Assembly upon the advice of his Council of Ministers. These four representatives made it amply clear to the Constituent Assembly that the State had acceded to the Union of India only and purely on the terms of the Instrument of Accession executed by the Maharaja.

The State of J&K continued to be governed by the Constitution Act of 1939 because the Government of India had pledged to the people of Kashmir that they could have their own constitution.

Therefore, while other princely provinces merged into India that had by then declared itself a Republic on 26th of Jan 1950, however Kashmir did not so merge into the nation of India. Sri Ayyangar in the Constituent Assembly Debates described the position as: “In the case of Kashmir it would not be so, since that particular State is not ripe for this kind of integration due to the special conditions prevailing in Kashmir” as the Government of India had committed itself to the people that an opportunity would be given to them to decide for themselves the future of their destiny.

Article 370 of the Constitution of India was thus an interim arrangement based primarily on the Treaty of Accession. Sardar Patel too has described this Article as a device to continue the existing relationship of the J&K State with the Union of India. ‘This is History’, and cannot be undone even by an impossible amendment to the Constitution of India, and those who are up in arms for abrogating this article are aberrant, and should necessarily do a rethinking.

Article 370 is also buttressed by Article 2 of the Constitution of India. It gives unqualified discretion to the Parliament to confer special status on a state since jurists point out there is no such doctrine of equality of status among the confederation of states in India. The cases of Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Mizoram and Sikkim support the argument even though the reasons differ from that of the state of J&K.

The special status was as such conferred upon J&K keeping in view the extra-ordinary circumstances. The arrangement was to be a division of sovereignty between the Dominion of India and the State of J&K and was possible only because of the federal structure of the Constitution of India, which guarantees autonomy to the state units.

Again by seeking abrogation of this article what is covertly being intended is erosion of the federal anatomy of the Constitution of India, which has been held to be the basic structure of the Constitution, and setting in place a unitary structure of Indian polity. Definitely, those who cherish the Constitution have a reason to be alarmed.

Even after the enactment of Article 370 various Presidential Orders were implemented in the State with the concurrence of the State Governments governing the J&K State at those points of time. Over a period of time, thus cementing the relationship of the State with the rest of India.

Now, whatever diminutive autonomy is left to the State is the enabling provision of Article 35A of the Constitution of India. It is the most significant feature of the Constitution that distinguishes the State from the rest of the India and is the only hitch left in the homogenization of the people with the polity.

The provision grants special rights and privileges to the ‘permanent residents’ substituted for the words ‘state subjects’ by the Presidential Order(the Constitution Application Order)1954 in case of employment under the State Govt; Acquisition of immovable property in the State; Settlement in the State and Right to scholarship and other aid provided by the State Government.

This too had a political background and was enacted by the erstwhile Maharaja way back vide notifications issued in 1927 and 1932 to prevent the exploitation of the local populace from outside well off influential people. And was then incorporated into law vide Article 35A of the Indian Constitution. The situation in the given political scenario is even worse today. The roar of Hindutva politics and anti-Muslim sentiment has only scalded the secular scaffolding of India’s scheme as envisioned by its legendary framers.

Therefore, the people of the State are genuinely concerned and have reasonable apprehensions that their demography, ethnicity, culture and ethos whatever remnants of dignity of their existence and feeble autonomy they have now, all is at stake.

It is noteworthy and of utmost significance that vide the same Presidential Order many other provisions of the Constitution were also made applicable to the State, the significant among them being the clause 2(3)(a) of the same order whereby the people of J&K were to be regarded as the citizens of India. Thus by challenging Article 35A the entity of the people as citizens of India is also being challenged, and that is precisely the dispute which has raged over all these years devouring precious lives and destroying decades which could otherwise have been constructive & peaceful.

Now with regard to the question that a daughter loses her ‘Permanent Residence’ status on account of Article 35A: The controversy was set to rest by a full bench judgment of the High Court of J&K in the year 2002, when Justice V.K. Jhanji presiding over the said full bench held in the case of State of J&K vs. Dr.SushilaSawhney that daughter of the permanent resident of the State of J&K will not lose her status as a ‘permanent resident’ of the State on her marriage with a person who is not a permanent resident of J&K.

Any dispute that arises with regard to the people seeking the said status can be dealt by the Legislature of the State only as the subject has been expressly restricted from the purview of the Parliament. The State legislature cannot be bypassed to expedite political ends of any ruling regime.

Whether it is the Constitution of J&K individually, or Article 35A read with Article 370 they have but co-existed harmoniously with the rest of the provisions of the Constitution even the fundamental rights. Enactment of these provisions is an arrangement within the framework of the constitution and not contrary to it. It is firmly grounded and in place to express thereby includes the will of the people of this State on the basis of necessity and India’s policy for J&K.

These articles are very much beyond the possibility of abrogation or change which may be ushered by fanciful passions or vicissitudes of party politics. These provisions are safeguards of the destiny of the people of Kashmir.

The Constitution of India under Article 32 guarantees its citizens the right to move before the Supreme Court. This article has been described as the ‘soul of democracy’.

In one of the debates of the Constituent Assembly on this article, Rev. Jerome D’Souza commented:“By this article we give to our Supreme Judicature a power, a status and a dignity which will call from them the highest qualities of integrity and uprightness”. I just loved it and it further emboldened my faith in the judicial system.

We must remember the golden words of the eminent jurist Hon’ble Justice Krishna Iyer who while delivering a judgment said: “The Court functions under the Constitution, not over it, interprets the constitution not amends it, nor dilutes it through personal philosophy projected as constitutional construction. Objective tuned to constitutional wavelengths is our function and if and only if constitutional guarantees have clearly been violated will the court declare as non-est such governmental projects as go beyond the mandates of Part III or Part IV (the fundamental rights or the directive principles).”

The case of our State craves an exception through the articles in question and there is primarily nothing incongruous or threatening to any fundamental or statutory rights whatsoever. But to the contrary it is the right to the life of its people that is endangered.

The Apex court is not only a sentinel of the rights of the people on the qui vive, but it is also the guardian of the Constitution. Hopefully we do not need a revolution to hammer it home in the consciousness of the people.

Author is an advocate at Jammu Kashmir High Court