35A does not give parallel rights to Kashmir

35A does not give parallel rights to Kashmir

By K C Mittal | 17 September, 2017

The sensitive border state of Jammu and Kashmir has become a battleground for unwarranted controversies. Why should there be an issue about acquisition of property or sense of insecurity leading to communal fortification, within the country? Rather than pulling the strings in a reverse direction or taking sides, we must act for betterment and harmony. In retrospect, the general perception created over the years that Article 370 grants special status, which comes in the way of purchase of property, may not be true. Currently, battle lines drawn on Article 35A, have added fuel to the fire after six decades. Basically, the crossfire is an offshoot of issues pertaining to Article 370.  The sequence of events needs to be viewed in the right perspective. Legally, the constitutional and territorial aspects of J&K, including citizenship stood settled long back. Unquestionably, the state is an integral part of India—a position that finds place in the 1st Schedule of the Constitution of India—as one of the States of the Union. The merger of the state with India under the Indian Independence Act, 1947 was final, duly ratified by the State Constituent Assembly. Further, Article 3 of J&K Constitution, 1957 categorically provides that the “State of J&K is and shall remain an integral part of India”. This cannot even be amended. The territorial boundaries were well identified and defined. Every inch of area within the sovereignty of the then Maharaja as on 15.08.1947, forms a part of Indian territories. This has been fortified by Article 4 of the J&K Constitution as well.

Post-merger, the offices of the “Sadre-e-Riyasat” and “the Prime Minister” were abolished, substituted with “Governor” and “Chief Minister” at par with other states—a milestone achieved in 1965.  The scope and extent of the powers conferred by Article 370 are undoubtedly explicit and advantageous, but not detrimental, as projected. It empowers Parliament of India to legislate on matters on the Union or Concurrent List, with the consent or concurrence of the state government. Similarly, the President of India gets the authority to issue orders in relation to these subjects. Let us not undermine these powers since they were the source of radical changes over the years. We need to understand their implication legally and logically.

Amongst others, the most important was the “Constitution (Applicable to Jammu And Kashmir) Order, 1954”, for short “Presidential Order, 1954” issued by the President of India. By this order, provisions regarding the “citizenship of India” contained in Part-II of the Constitution of India were extended to J&K, retrospectively. As a result, people of J&K became citizens of India from 26.01.1950. This constitutional mandate is binding.

Article 35A was part of the Presidential Order 1954, but does it confer nationality other than Indian citizenship? The Constitution of J&K in 1957 recognised “Citizenship of India” and there is no use flogging a dead horse.

The legislative, executive and judicial powers underwent substantial changes due to powers under Article 370. In reality, the state ceased to be a princely state and the scenario underwent complete transformation from the conditions prevailing in 1927. Some persons may want to live in the past but they must realise that we have travelled far ahead. Three notifications dated 31.1.1927, 20.4.1927 and 27.6.1927 issued by Maharaja Hari Singh to grant preferential and protect proprietary rights to state subjects of J&K, have undergone sea change over the years. Independent and separate states have lost their identities and kingdoms. In 1927, each state had their independent control and regulatory mechanism. A person travelling from one state to another was considered a foreigner, but after Independence, all countrymen are Indian citizens. No one can be treated as a stranger or an outsider. These notifications have lost their relevance, intent and purpose, even enforceability to prohibit the purchase of property by a citizen of India in any part of the country. Any insistence otherwise would be contrary to the Constitution. The state has a Legislative Assembly of 111, members including 24 seats for PoK. The conduct of elections is entrusted to the Election Commission of India. Noticeable, Articles 371, 371A to 371D, 371F to 371J applicable to other states contain “special provision”, but 370 does not have any such categorisation. The general impression that Article 370 prohibits acquisition of property in J&K is fallacious.

The applicability of citizenship provisions of Constitution of India and Indian Citizenship Act, 1955 to J&K is final and no confusion should be created. The term “permanent residents” used in Article 35A do not confer citizenship, nor any parallel rights. As from 26.01.1950, the entire complexion changed and the concept of state nationality came to an end, as such the earlier notifications have become otiose.

Examining from another angle, Article 35A stands superseded by Article 6 of the J&K Constitution, 1957, which recognises citizenship of India conclusively. I am rather surprised why IPC, CrPC and CPC have not been made applicable so far in J&K. One of the areas of conflict is retention of community bastions for whatever reasons, but that approach is against the spirit of the Constitution. The country cannot permit any fortification on community lines as that will endanger the unity and integrity of India.

K.C. Mittal is a former Chairman of the Bar Council of Delhi and former President of the High Court Bar Association.

 

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