By Sarvesh Kumar Shahi
Article 35A of the Constitution of India, introduced via the Constitution (Application to Jammu and Kashmir) Order of 1954 on May 14, 1954, has dragged up an intense debate in the country. The trigger raised recently, by a Kashmiri woman called Charu Wali Khan, who settled outside the state, challenged the legality of Article 35A of the Indian Constitution that allows J&K to define its “permanent residents”. She claimed in her petition to the Supreme Court that such a law takes her succession rights away and disenfranchises her. Discriminatory and special rights as regards employment, acquisition of property and settlement have been conferred on permanent residents of the state by inserting new Article 35A in the Constitution.
Article 35A reads as follows:
Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State, —
(a) defining the classes of persons who are, or shall be permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent 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 scholarships and such other forms of aid as the State Government may provide;
shall be void 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 (i.e. Part III of the Indian Constitution).
Legality of Article 35A
Sections 2(3) and 2(4) of the Order of 1954 made Part II of the Constitution of India dealing with Citizenship and Part III of the Constitution of India dealing with Fundamental Rights applicable to the State of Jammu and Kashmir. However, the State legislature would have power to make special provisions for the permanent residents of the State and for that purpose Section 2(4)(j) of the Order of 1954 inserted Article 35A in the Constitution of India 1950. Article 35A accords special power to Jammu and Kashmir Assembly for framing laws to give privileges and rights to the residents of the State. It entitles the Assembly to define Permanent Residents of Jammu and Kashmir.
Exercising its powers under Article 35A, the Jammu and Kashmir Assembly defined “Permanent Resident” as a person who was a state subject on May 14, 1954 or who had been a resident of the state for 10 years and had “lawfully acquired immovable property in the state.” A person who is not a permanent resident of Jammu and Kashmir is not allowed to vote in state Assembly elections or contest elections to the state Assembly.
The division bench of the Jammu and Kashmir High Court in July 2015 observed that the article, which was added to the Constitution on 14 May, 1954, through a Presidential order bypassing the Parliament, appears in the Constitution as an “appendix” and not as an “amendment,” by virtue of being a “clarificatory provision.” Justices Muzaffar Attar and J. M. Magrey had held that, “the power of Parliament to make laws in respect of J&K is circumscribed and it can make laws for it only where permitted by the state and not otherwise, and that too in accordance with the mechanism prescribed by Article 370 of the Constitution of India.”
Unknown to the public domain till recent times, Sections 2(3) and 2(4) of the 1954 Order preserve the tenets of the state’s Constitution. The power of Parliament to make laws in respect of J&K is circumscribed and it can make laws for it only where permitted by the state and not otherwise.
The Apex Court case arose out of a petition filed by an NGO called “We the Citizens” in the year 2014. The NGO filed a writ petition asking the court to strike down Article 35A. While the state government filed a counter to the petition, the Centre did not, leading to speculation that the BJP-led government might be looking to end the state’s special status.
Thus, prima facie, it looks like Article 35A is a constitutional mistake. It was incorporated through a presidential order and not through the parliamentary process. However, if such presidential orders are to be challenged, it could lead to a deeper unraveling. If the Court rules that these Constitutional Application Orders are invalid, such a judgment will have to be made applicable to all the Constitutional Application Orders from 1950 till date. The constitutional link between the Union and the State will be snapped and the position of the State will be same as it was before constitutional arrangements were worked out. If Constitutional Application Orders are invalid, such a judgment will have to be made applicable to all the Constitutional Application Orders from 1950 till date. The Constitutional link between the Union and the State will be snapped and the position of the State will be same as it was before constitutional arrangements were worked out. If the Constitutional link between the Union and the State will be snapped and the position of the State will be same as it was before constitutional arrangements were worked out, there would be no one in Kashmir.
On July 28, 2017, Chief Minister Mehbooba Mufti had warned against tinkering with Article 35A saying if this happens, there would be no one in Kashmir. Mufti besides said, “Let me be very clear. By doing this entire thing (challenging Article 35A), you are not targeting the separatists. Their (separatists) agenda is different and it is totally secessionist. But, you are weakening those powers which are Indian and trust India and participate in elections and who fight to live a life honorably in Jammu and Kashmir. This is one of the problems,” she said.
Besides, as the BJP militates against permanent residency laws in its push for national integration, it may have to answer some tricky questions. Several states in the country have domicile policies cordoning off their “original inhabitants” from outsiders. In North Eastern states such as Manipur and Arunachal Pradesh, there are restrictions on outsiders buying land, under a policy of “protective discrimination”. Do these laws also get in the way of the project of national integration? So, these are the important issues which are needed to be answered before the apex court.