Relevance and the Legality of Article 35A of the Constitution of India

BY Vipin Agarwal.

On 26th October 1947, the State of Jammu & Kashmir acceded to India through the Instrument of Accession between Maharaja Hari Singh and the Government of India based on certain conditions that the matter of Defence, External Affairs and Communication would be preserved for the Government of India. In 1949, several negotiations took place with the government of India, and resulted in the insertion of a temporary provision (Article 370 of Constitution of India) which continues to hold even 70 years of Independence. Article 370 of Constitution of India gives autonomous status to the state of J&K to make laws, conferring special rights and privileges on the ‘State subjects’ with respect to their Citizenship, emergency power in case of internal disturbance and regard to national flag. The Presidential order of 1954 was a result of the 1952 Delhi Agreement which inserts Article 35A in the Indian Constitution.

The agreement dealt with many aspects, but the most important was of people who had gone to Pakistan on account of communal violence in 1947, to return thereafter for permanent settlement in J&K.

The history of the Kashmir Valley, the beautiful state of Jammu and Kashmir, is full of struggle, riots, separation, partition, dominance and governance. This status is still continuing with the ongoing debate over Article 35A of the Indian Constitution which came into force vide Constitution (Application to Jammu & Kashmir) Order 1954 passed by the then President of India. This was driven by his inherent power under Article 370 of the Indian Constitution. The Article empowers the J&K legislature to define the status of its residents as permanent and to confer upon them special rights with regard to immovable property, employment, scholarship, public aid and welfare. Article 35A speaks the following:

“35-A. Saving of laws with respect to permanent residents and their rights – Notwithstanding anything contained in this Constitution, no existing law in force in the State of J&K and no law hereafter enacted, by the Legislature of the State:

(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restriction as respects

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.”

The Jammu and Kashmir constitution was adopted in the year 1956, two years after the above presidential order, and it incorporates within itself the rights of permanent resident in its Section 6. Section 6 of the J&K constitution reads as follows:

“6. Permanent residents-

The Debate was triggered when BJP had mentioned that Article 370 shall be abrogated in their manifesto of Kashmir election. After this, an NGO (We the Citizen) challenged Article 35A before the supreme court on the ground of its unconstitutionality. The main contention was that a Bill made by the President of India by exercising Extraordinary Power conferred by clause (1) of Article 370 of COI was not presented before the Parliament and came into effect by Presidential Order 1954, which violates Article 368(1) of COI. Insertion of Article 35A in the Constitution is completely a new amendment, which can’t be done by modification or even amendment of existing constitutional provision by exercising constitutional power under Article 370(1) of the Constitution of India.

In a case of Puranlal Lakhanpal v/s The President of India And Ors., the Supreme Court held that the word “Modification” under Article 370(1) can’t be limited only to such modification as do not make such “radical transformation” and it also includes amendment.

Another petition filed by Supreme Court lawyer and native of Kashmir (Charu Wali Khanna) challenged the validity of Article 35A, that it was discriminatory towards women natives of the state and in conflict with Article 14, 15, 16 and 19 of Constitution of India. The petition ignited a debate with regards to the status of women in J&K. If a Kashmiri woman marries a man who is not a permanent resident of Kashmir, then she loses rights and privileges which she is entitled to. But this is not the case with a husband if he holds a permanent resident certificate and marries an outside state woman. Also, this disentitles her children born out of succession to hold her property in the state if the husband is not holding a permanent resident certificate. With respect to this contention, the High Court of J&K gave a landmark judgement, State of Jammu & Kashmir v/s Dr. Susheela Sawhney And Ors, in which the court held that women marrying a non-permanent resident will not lose the status of permanent resident of the state of J&K, but their child would.

Article 35A of the Constitution is a derivative of Article 370 of the Constitution which gives power to the state of J&K to define its permanent citizens who have the right to vote, who can own land in the state of J&K and who can get employment. But this article goes against the spirit of the constitution by firstly, it was incorporated in the constitution by the president exercising their extraordinary powers which bypass the parliament and secondly, it is gender discriminatory. After independence, six and a half decades passed away and still a matter of utmost public importance is pending for decision. At present, the Supreme Court clubbed the Charu Wali Khanna petition with the NGO case and will discuss the constitutionality of the matter before a five judges bench of Supreme Court. We sincerely hope that the Supreme Court takes into account the discriminatory provisions and makes good the violations of the right of the people and this would in the end decide the fate of Kashmir Valley.