The studied decision of the Supreme Court to expand the ambit of the petition challenging the validity of Article 35A of the Indian Constitution (that allows the state of Jammu and Kashmir to define state residency and its concomitant rights), by referring the matter to a three-judge bench in response to a plea by Attorney General K.K. Venugopal, that it warranted a “larger debate”, has stirred up a hornets’ nest and raised the hackles of Kashmiri political leaders.
National Conference leader Omar Abdullah angrily retorted that “if there is debate on (the legality) of the Article, you will have to debate the accession itself”. Chief Minister Mehbooba Mufti averred that in such an event there will be “no one to shoulder the Indian flag in the Valley”.
But what exactly is the significance of Article 35A? How does it relate to the more well-known Article 370? What are the implications of this Article to the country as a whole? And does questioning its validity counteract the legitimacy of Kashmir’s accession to India?
These are the questions central to the brouhaha sparked by the Article 35A controversy.
First, to allay any misperceptions regarding Article 35A and its relationship to Kashmir’s accession, we need to refer back to history and recapitulate the events that led up to the formulation of Article 370.
On 26 October 1947, with marauding Pakistan tribesmen closing in on Srinagar, Maharaja Hari Singh (who till then had refused to accede to India or Pakistan) signed the instrument of accession to India, allowing Indian soldiers to enter and defend his kingdom. This instrument of accession was exactly the same document that all other states had ratified, as indicated by the political scientist M.K. Teng in his book, Kashmir: The Myth of Autonomy: “In 1947, when Jammu & Kashmir acceded to India, the ruler of the State, Maharaja Hari Singh signed the same standard form of the Instrument of Accession, which the other major Indian States signed… was not subject to any exceptions or pre-condition…” (pp VII).
By signing the “same standard form of the Instrument of Accession”, J&K came to be included in the First Schedule that lists the States and Union Territories subject to Article 1 of the Constitution, which defines the territorial composition of India. In other words: the basic structure of the relationship between India and J&K is similar to that of other states.
So, let us be clear about one thing: the accession of J&K to India is full and final. It is non-negotiable, with or without Article 370, or its derivative Article 35A. These statutes came much later. Attempts to link any debate on Article 370 and Article 35A with the accession of India is a flawed, logically invalid argument.
The original accession of J&K (like all other states and princely kingdoms) was based on the stipulation that only matters of Defence, External Affairs and Communications would be the preserve of the Government of India. While all other states decided to drop this restrictive covenant, and accept in toto the decisions of the Constituent Assembly, Jammu and Kashmir chose to differ, sticking to the original agreement instead, hence, Article 370, which outlines this special status.
Subsequently, several other provisions of the Indian Constitution were made applicable to J&K by an amendment inserted into the Constitution: a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the President of India, “in exercise of the powers conferred by” Clause (1) of Article 370 of the Constitution, with the concurrence of the Government of the State of Jammu and Kashmir.
Article 35A was one of these additional changes and allows the J&K legislature to define who is a permanent resident and consequently who is eligible to vote, work for the state government, own land, and college admissions. Article 35A spawned a set of laws that were discriminatory in nature. Non-permanent residents are denied all these rights listed above.
The petition challenging the validity of Article 35A filed by an NGO, We the Citizens, in 2014 objects to the Article both on procedural grounds (only the Parliament and not the President has the right to amend the Constitution) and constitutional validity.
Listed below are some of the practical implications of these discriminatory laws:
1. By denying Indians from other states to own property in J&K, these laws violate fundamental right to equality enshrined in Article 14 of the Indian Constitution that states: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
2. A Kashmiri woman marrying a non-permanent resident or outsider loses all succession rights, while a Kashmiri man does not. Char Wali Khanna, a Supreme Court lawyer and a native of Kashmir, in her petition against Article 35A (now tagged on to the original petition), states the rules restricted the basic right of a Kashmiri woman to marry a man of her choice, by not giving her children any right to property if the husband is not holding a Permanent Resident Certificate (PRC): a gender inequality not consistent with Article 15 that prohibits discrimination on basis of religion, caste, race or place of birth.
3. Supreme Court lawyer and India’s Finance and Defence Minister Arun Jaitley, commenting on the plight of refugees who migrated to J&K during partition and who are now Indian citizens but not “state subjects”, states: “The effect of this is that these citizens of India are not entitled to the protection of Article 14 (equality), Article 15, Article 16 (equality of opportunity in matters of public employment and reservations), the fundamental rights under Article 19 including the right to free speech…”
4. Also, this gives rise to a Quixotic situation, wherein a Pakistani citizen can buy property in J&K, while a legitimate Indian citizen cannot; the J&K Constitution grants residency rights to Kashmiris living in Pakistan Occupied Kashmir, overriding security concerns.
So, can a state which is an integral part of India enact laws that violate constitutionally sanctioned fundamental rights?
The answer is a big no.
That brings us to the ultimate question: Is the reversal of Article 370 (read Article 35A as well) legally and constitutionally impossible, as naysayers routinely claim. Jai Anant Dehadrai, a Supreme Court advocate, disagrees (TOI, 31May 2014): “Equally ludicrous is another suggestion from Omar Abdullah, who argues that the original Constituent Assembly be resurrected to debate this issue…The late professor M.P. Jain whose book is considered one of India’s foremost texts on Constitutional Law, makes it abundantly clear that since no such ‘Constituent Assembly’ exists anymore, any limitation sought under Article 370(3) would cease to operate and the entire provision would be open to amendment under the regular route available to Parliament under Article 368.”
In conclusion, Article 370 (along with Article 35A) is an anachronistic decree that has outlived its utility, militates against India’s sovereignty, and discriminates against both Indians and Kashmiris by mutually excluding each other from syncretic growth. It is redundant, can be debated and constitutionally discarded.
It was envisioned as a “temporary provision” and that is how it should be treated.