Article 35-A:Case for non-Partisan Stand
The Political environment in Jammu and Kashmir is going to be too hot, amid a rising sense of unease as the date nears for a hearing in the Hon’ble Apex Court on petitions challenging the validity of Article 35-A.
Article 35A of the Indian Constitution is an article that empowers the Jammu and Kashmir state's legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 - issued by the President of India on 14 May 1954 in accordance with the Article 370 of the Indian Constitution, and with the concurrence of the Government of the State of Jammu and Kashmir.
In July 2015, an RSS-backed think-tank called the Jammu & Kashmir Study Centre first came up with the idea to challenge Article 35A in the Supreme Court. A petition was filed in the Delhi High Court against the Article. According to constitutional expert A G Noorani, all the legal arguments against the article are groundless, and are raised with "communal-minded majoritarian" intentions. He refers to the various Articles in the Constitution, that similarly provide special rights to other Indian states like Nagaland (Article 371A) and Mizoram (Article 371G) and notes that there are various provisions in the Indian Constitution which confer "special status" to several other states also, in varying degrees based on historical reasons, and remarks that no objections were raised on them. Since Article 370 was enacted on 26 November 1949 as part of the Constitution of India by the Constituent Assembly of India which was a sovereign body, he remarks, Article 35A "flows inexorably" from it. He recalls the Sheikh Abdullah's report to Kashmir’s Constituent Assembly on 11 August 1952, which said, “It was agreed that the State legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State more especially in regard to acquisition of immovable property, appointments to services and like matters. There are historic reasons which necessitate such constitutional safeguards as for centuries past, the people of the State have been victims of exploitation at the hands of their well-to-do neighbors".
Article 35 A protects the demographic status of the Jammu and Kashmir state in its prescribed constitutional form. Kashmiris are apprehensive that any move to abrogate Article 35A would open the gates for a demographic transformation of the valley, an objective advanced by the Sangh Parivar groups as an ideal solution to the Kashmir issue. However, the state's autonomy has been gradually eroded by various governments of Delhi through misuse of the provisions of Article 370, and remarks: "Kashmiris have come to regard the rights of permanent settlement as the only remaining piece of any meaningful autonomy." Former Chief Minister of Jammu and Kashmir, Late Mufti Mohammad Syed, while speaking about the issue of West Pakistani refugees, has said, "before we do anything on this, we need to allay genuine fears that there is an attempt to change the demographics of the state.” Noorani also points to the observations made by the High Court of Jammu & Kashmir in this regard, while delivering a judgment on 16 July 2015 that "The Parliament has no power to legislate law about the subject's administration of justice, the land & the other immovable properties.
Article 35(A) of the Constitution of India, which has been applied to the State of Jammu and Kashmir, not only recognizes but clarifies the already existing constitutional and legal position and does not extend something new to state of Jammu and Kashmir. This article, on its own, does not give anything new to the State of Jammu and Kashmir. Article 14 of the Constitution of India, as has been made applicable to the State of Jammu and Kashmir, thus, gave equal protection of laws to the State subjects/citizens as a class apart. Similarly, article 19(1)(f) of the Constitution of India, which has been made applicable to the State of Jammu and Kashmir and till date continues to be in force in the State, recognizes the right to own, hold and dispose of property, which right otherwise is inherent in the State subjects/citizens of the State of Jammu and Kashmir, who stand defined in terms of élans/Orders of his highness and the Constitution of Jammu and Kashmir.
Laws have their own universe. They operate in matter and not in vacuum. The laws are located in time and space. In the State of Jammu and Kashmir, the immovable property of a State subject/citizen, cannot be permitted to be transferred to a non-State subject. This legal and constitutional protection is inherent in the State subjects of the State of Jammu and Kashmir and this fundamental and basic inherent right cannot be taken away in view of peculiar and special constitutional position occupied by State of Jammu and Kashmir. Article 35-A is clarificatory provision to clear the issue of constitutional position obtaining in rest of country in contrast to State of Jammu and Kashmir. This provision clears the constitutional relationship between people of rest of country with people of Jammu and Kashmir."
As an amendment to, or modification of, the 1954 order, 41 subsequent Presidential orders have been passed afterwards. According to the report of the State Autonomy Committee, the central government, through these Presidential orders, extended 94 out of 97 entries in the Union List to Jammu and Kashmir, and made applicable to the state 260 out of 395 articles of the Indian Constitution. They have been used to issue provisions and make changes, which include - replacing the elected Sadr-e-Riyasat (President of the State) with a Governor chosen by the Centre; changing the ‘Prime Minister’ of the state to Chief Minister; extending the powers of the Supreme Court and Election Commission to Jammu and Kashmir; and preventing the state Assembly from making any amendment to the Jammu and Kashmir Constitution.
The senior advocate Zaffar Shah of J&K High court says, Article 35A has been added in the Constitutional Application Order 1954 and by questioning it, the entire Constitutional Application Order will have to be questioned. If the Court rules that 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. So, if the order of 1954 is snapped, Jammu and Kashmir can, in theory, return to the pre-1954 constitutional arrangement, where the Centre’s powers were restricted to Defense, Foreign Affairs and Communications alone, according to the Instrument of Accession. Zaffar Shah states, it will also affect various provisions of the Constitution of the State and result in Constitutional crisis.
Advocate Zaffar Shah adds that the scope and extent of power of the President to apply Constitutional provisions with or without “exceptions” or “modifications” has already been subject matter of the decisions of the Supreme Court of India, and he opines, it is ruled to be co-extensive with the power to amend Constitution and includes the power to enlarge any existing provision or add new provision. He says the only requirement is that it has to be done by the President with “concurrence” of the Government of Jammu and Kashmir.
The major political parties of the Kashmir Valley, NC and PDP have remained in support to the preservation and safeguarding of Article 370 and Article 35A. In defense of Article 35-A, the Jammu and Kashmir state Government in November 2015, prepared a report which read, "though Article 368 has been applied to State of Jammu and Kashmir, that would not curtail power of President under Article 370 to amend any provision of Constitution of India in its application to Jammu and Kashmir”. It termed the PIL against the article as “legally misconceived, untenable and meritless”.
In January 2017, the former Chief Minister of Jammu and Kashmir, Mehbooba Mufti has commented that anybody raking up Article 370 & Article 35 A repeatedly, is hurting the soul of Kashmir. Vowing to oppose any such move, she said, “There will be no bigger anti-national thing than this because when you weaken this uniqueness of Kashmir through judiciary, then those forces in Kashmir Valley, who want to put an end to the composite culture in Kashmir Valley and want to have people from one community (Muslims) only, with one attire and one way of life, you will only make them successful.” Talking about BJP's opposition to the state's autonomy, she also said, “When the people of BJP talk of Article 370, they talk of technical integration. We have to make them understand that we also want that Jammu and Kashmir should fully integrate with India emotionally, technically." She added that the integration which should have been done "emotionally and psychologically", was not done completely, which is needed, and for it, she said, Article 370 is not an impediment but a bridge which connects the state of Jammu and Kashmir and the rest of India. Previously in 2014, during a similar debate regarding autonomy of Jammu and Kashmir and Article 370, Mehbooba Mufti stated that fiddling with Article 370 could lead to anarchy in the state. She said, such “irresponsible utterances” should be stopped as they could have serious repercussions in Jammu and Kashmir, besides having the potential of spoiling the atmosphere of inclusiveness and peace which the Indian government aims at achieving later, it was also challenged in the Supreme Court.
This year the state government has allowed filling up Super-Specialty Medical seats at Sher-e-Kashmir Institute of Medical Sciences (SKIMS) here through a common National-level counseling under NEET for current academic session.The SKIMS is a Deemed University established under Act of state legislature. Untill last year, the institute was itself conducting the examination for filling up these seats, However from this current academic session the selection process has been allowed under National Eligibility cum Entrance Test (NEET), implying that students from across india are now eligible for applying under Super-Specialty quota at the institute. Untill now there has been no opposition from the state government or from SKIMS authorities to the move. This year 22 candidates got admitted in SKIMS under Super-Specialty quota out of selected candidates 14 are non-state subjects.
As the same issue came into limelight after Andhra Pradesh and Telangana challenged the common counseling under NEET in the Hon’ble High Court of Hyderabad, which ruled in favour of the petitioners who had invoked Article (371-D) of the Constitution. Now the apprehension is that SKIMS would go to the National Institute of Technology (NIT) way where the non-state subject student ratio is more than state subjects. “That will be the fate of SKIMS now”. The Hon’ble Apex court has last year ruled out that only state subjects would be eligible for admission to different Medical courses in Government Medical colleges, Private Medical colleges, Universities and Deemed-Universities in the state under NEET.
This is not the first time that there is giggling with special-status of J&K. As the Subject of Education is concerned including Technical Education and Universities, we have initially lost the game when “Regional Engineering College” (REC) was converted into NIT in 2003. In REC the admission was strictly meant for state subjects before it was converted into NIT. The extension of NEET to the J&K State and admitting the candidates on JEE-Main Examination for Engineering programmes by state Universities, Deemed Universities and Autonomous Universities is infringement.
Whatever, be the result of Hon’ble Apex Court’s hearing on Article 35-A, the case is yet another reminder of how the J&K State is ill-prepared in terms of building a robust political and developmental response to such matters. While fundamentally it is a political issue-which goes right at the heart of special status of Jammu & Kashmir as enshrined in the commitments made in the constitution of India. It is also a developmental issue with implications on the state’s aspirations of human development.
The State-government’s eleventh-hour response of engaging the issue by filling a petition in the Hon’ble Apex court has not been an efficient way of handling the issue. The state’s response, as such, needed to be two-prolonged. The right political response could have been for the Jammu & Kashmir government to have a special session of the Legislative Assembly and pave the way for all the representative political parties to take a common position on this critical matter.
If there will be any attempt to dilute the special status of Jammu & Kashmir, a large number of aspiring students of Medical and Engineering will be left with no option but to look for costly options of leaving the state and seek education elsewhere. Moreover, once the state’s Medical and engineering colleges will pave the way for non-J&K Students who will attain their Education from J&K would, in all probability, choose to work outside Jammu & Kashmir. In such circumstances, the state’s IT and Health sector could really face serious issues of manpower as well as there will be a serious repercussions on political front, which may leads to another unrest. It is a serious issue and J&K political parties with inclusiveness need to engage on this matter with joint consensus and higher degree of urgency. So, it is the time to think seriously lest we lost what we have.
(Shah Khalid is a freelance Journalist)