As a Supreme Court bench is scheduled to decide the fate of petitions challenging the special constitutional provisions which protects the identity of Jammu and Kashmir on August 27, Saima Bhat interviews lawyer and constitutional expert Zaffar A Shah to understand the evolution of the provisions, their importance and the consequences, in case, these fail the judicial scrutiny
KL: Why is Kashmir tense over 35A?
Zaffar Ahmad Shah (ZAS): It is a very sensitive matter. 35A is not an ordinary provision of the constitution. It is an identity of the people of the State, which protects the state subjects, the certificate of permanent residency, employment, the right to acquire properties, and the scholarships. Therefore, if you tinker with this provision, all these protections, safeguards will automatically go.
Politically the legal position is that the right to contest the assembly elections is available to only permanent residents. If you are removing Article 35A on whatever grounds available, then it has very serious implication for the people of the state.
KL: It has been said that the special provision of Jammu and Kashmir came under the scrutiny of the constitution bench many a time before and was upheld. What are the apprehensions now?
ZAS: Article 35A has been right there since 1954. In subsequent years, some of the parts of these provisions came under challenge before the court. They were referred to constitutional benches; the latter did not disturb these provisions and ruled they are perfectly fine.
But today, the situation is altogether different.
In 2014, the first writ petition was filed, a few months before the new government took over. There is a part of the design that is how we see it. It was filed by an unknown group called We the Citizens of India and it was followed by four more petitions. Why were these petitions filed now?
First, with the change in government, these petitions were filed so we question the very bona fide of filing this petition. Second, we also feel, that there are some unseen forces sponsoring this litigation to disturb the situation in Jammu and Kashmir. I mean the situation that exists so far as the constitution is concerned. Third, we also feel that looking at the core issues of the existence of 35A, and Article 370, you cannot do it in isolation, you have to begin with the Instrument of Accession. So you have Instrument of Accession, Article 370, 35 A and there are many other provisions of the constitution which have been made applicable to us.
When you take a total view of all these constitutional provisions, what you find is that the matter is essentially political in nature, and by resorting to the legal remedies by approaching courts, a serious attempt is being made to resolve the political issue through the court processes. So in principle also, we feel it is bad. If something needs to be decided, it has to be done on a political basis. Obviously, the people, who are behind this litigation, understand that politically they may not succeed so they proceeded to the court. But we hope that Supreme Court will see through the game and will render justice to the State of Jammu and Kashmir.
KL: When the president added 35A to the constitution of India, there were many things other than state subjects that were dealt with. If the bench decides on one part of it and terms it illegal what happens to the other interventions by the same article in the constitution?
ZAS: The bench is dealing with the entire 35A; the bench is not dealing with part of 35A. Now if the bench decides that 35A is not a valid provision, obviously then many other issues will come up; the bench may have to indirectly question the Article 370 in itself. The bench will be questioning, maybe, to the extent of Instrument of Accession in itself, which we believe and which has historical fact of a very limited nature in the sense that the then king had only donated or transferred his power in respect of three matters only: communication, foreign affairs and defence. So you have to look into the Instrument of Accession and why Article 370 is there. If the bench decides against the people of the State and these petitions are allowed, then it will make all other provisions very vulnerable. Many other constitutional issues will arise and in my opinion, it will create aconstitutional chaos.
KL: Now it is being said that J&K state subject laws are gender-biased. Is it correct?
ZAS: When you say it is gender biased, one needs to understand it. It was in 1927 when the first time Maharaja issued the notification, which was followed by another notification in 1932. The Maharaja, who issued these notifications, was a law unto himself, was a sovereign. He had the powers for legislative, judicial and executive and all other powers were in him. He was running a country. Now as a country, the sovereign has the power to decide who should and who should not be its citizen. If you look at Indian citizenship law, you cannot question it on the basis that the law is different in the USA. The comparison will totally be a mismatch. You have to understand 1927 and 1932 notifications were given by the sovereign and it is these notifications which provided who could be a citizen and who could not be a citizen.
These notifications are consistent with the position under International Law, which authorises sovereign countries to decide that if a woman of that particular state marries somebody else whether she will continue to be the citizen of that state or not. This is a recognisable position under the International law so therefore you have to see it in the context of the position when these laws were made.
Today it looks very attractive argument to say that if a woman from Jammu and Kashmir marries a person who is not a permanent resident of the state she losses her state subject. But I must tell you, though that was the law for quite some time, a few years back in a decision delivered by the full bench have ruled that she does not lose her state subject even if, she marries a person who is not a state subject. Now that is the legal position that exists today. That full bench decision has not been reversed or altered in any manner. So the women from the State married outside, will continue to be the permanent resident of the state. This is what the full bench has ruled. Whether one could have reservations about the full bench is a different issue.
As on today, the law is different so therefore this can be protected on the basis that the State, as the sovereign, has the power to say which of its subjects will have what kind of rights. Like if a citizen of India, who is not a permanent resident of the state, has all the rights available to him in India, the most important fundamental rights. But when he travels to Kashmir, he cannot exercise those rights here. He cannot have the right to contest elections here, acquire land, and cannot claim any appointment in the state government. It means the State has its own independent authority as a sovereign to impose limitations on the rights which the people may otherwise have.
Same is the case when a resident of American comes to India. There are many rights which he has in his own country, but the moment he lands in India, those rights are not available to him. He makes himself subject to the local laws, rights, privileges, liabilities as are available to the people who reside in India.
So in a sense, there is no conflict what is sought to be made out between what the rights of the citizen of India are and what the rights of the permanent resident in J&K are. There is no conflict. The conflict is answered by this legal principle that all those rights which they possess under the Constitution of India, which they can exercise outside the State of Jammu and Kashmir, those rights are subject to the laws of the constitution of the State. Why the State has its own laws is, as I told you, they are rooted in the Instrument of Accession and that position is reflected by various provisions of the constitution of India as well as the constitution of Jammu and Kashmir and other enactments.
KL: It is being said that separatists by throwing their weight behind the status quo in 35A are supporting a guarantee in the constitution of India that they otherwise don’t believe in. How sound is this argument?
ZAS: This argument is totally misconceived. I have today article 35A which safeguards my identity, culture and everything. Whatever I have is protected by 35A and other provision of the Constitution. It is sought to be taken away and you are offering resistance to that. When you offer resistance, it means I would not allow you to take it away but it doesn’t mean you cannot demand something else. It doesn’t lead to that conclusion at all.
Joint Resistance Leadership has already said that they are fighting for the basic resolution of the State of Jammu and Kashmir, and in their view, they find a close link between the laws relating to state subject and the ultimate resolution. The link, they find, is in their stand that in the event at some time in future, if the UN resolutions will be implemented, at that time, one of the questions which have to be answered is who the people who can participate in the referendum are. The people who can participate in the referendum can only be those who hold the state subject. Now when an attempt is being made to take away the state subject then obviously you are creating problems, even for ultimately identifying the people who can participate in such an event. So they read it in a different light, different perception. They are not opposing this for the sake of opposition. They are not doing it that they want employment but their reason for the opposition is altogether different.
KL: Is Article 370 linked to the Kashmir issue or is it the same provision that the constitution of India extends to the other states?
ZAS: No. Article 370 is the special provision only for the State of Jammu and Kashmir. You have to begin with the Instrument of Accession, which provides for the limited kind of an accession in respect of three subjects only. And about the other matters, Article 370 provides its own mechanism. It says the constitution of India will not apply to the state of Jammu and Kashmir, but the President of India alone will have the power to make Indian constitution application to us. He can pass orders, the constitution application orders, applicable to us, and while doing so, he again has the power under Article 370 to apply those provisions of the constitution with modifications and accessions. So when you look at the constitution application orders passed in last six decades, you will find that the provisions of the constitution of India which have been made applicable to us, some of the provisions, not all, do contain modifications and exceptions just like 35A is an exception to part III of the constitution of India that is to the entire fundamental rights. That is why this constitutional position is there; it was not created yesterday.
You also have to understand how the government of India itself dealt with the state of Jammu and Kashmir way back in 1947. It is the position of 1947 which is reflected in the constitution of India that is the original intent of the constitution that so far as the people of the state are concerned their position is different. They will have a special status and they will have a unique position even when we all say that Jammu and Kashmir is an integral part of India. We have a different meaning for an integral part of India: integral in what sense, in the physical sense of the word or is it in terms of the governance? These are highly debatable constitutional issues. I can only say without understanding how and why of this constitutional position, without understanding the settings of these provisions in the constitution, without appreciating and recognising the historical background of the very existence of these constitutional positions, without understanding and appreciating as to why these constitutional positions exist, why is not the State of Jammu and Kashmir like any other state, possibly we will have problems in our perceptions, in our understandings and we need to be clear on that.
KL: For the sake of an argument, if article 35A is abrogated what will it mean? One former PDP minister says it will convert a constitutional relationship to an occupation. And what option remains for J&K then?
ZAS: It will have serious implications. The former minister is entitled to his views. He can say so.
As far as the State is concerned, I hope it does not go, because somebody somewhere must listen what the people are saying, must understand the nature of a commitment made to the people of the Jammu and Kashmir, must recognise and appreciate that this constitutional position is not yesterday’s creation but has been there from 1947 onwards, must recognise and appreciate that this problem also has an International dimension, must also recognise and appreciate that this domestic constitutional position is directly linked to the various resolutions passed by the United Nations and must understand that there exists a problem for which more than 150 times meetings were held between the leaders of the two governments, three wars were fought, several declarations and agreements were made. All these things have a background, a clear one.They did not arise from nowhere. The question is whether all those people, who are stakeholders to the situation, are they honest enough. Are they sincere enough to recognise and appreciate that state of Jammu and Kashmir is a distinct state, has a distinct constitutional position, has a distinct history, and the kind of commitments which have been made with the people of the state of Jammu and Kashmir, both within the constitution of India or outside it.
If this is something written on the wall, if you don’t want to read it, then obviously the public have all alternatives open to them to press for what they want. But in a democracy, if you want democracy to be mature enough, you have to prove it to the world that you are in a government which has beliefs in a democracy that is very important that you must listen to people. Ultimately the test is of the people.
Recently the four learned judges of the Supreme Court publicly came out. See it in this perspective that ordinarily all of us go to the court for resolving our problems and disputes. And now when there are differences among the judges of the Supreme Court in itself where will people go? The Supreme Court in itself could not resolve its own dispute. The four learned justices had to come to give a press conference telling people that this is our problem. So it means, for all the problems in a democracy, it is the people who decide, it is the people who are the final arbitrators, final decision makers, if the system fails to deliver. So when you ask this question what happens if they do this or that, my answer is simple people will decide and people will respond.
KL: Do you see this as a plan for ethnic flooding of J&K State?
ZAS: It is not the immediate fall of 24 hours. It is bound to initiate a process that will take time. It is bound to initiate a process. Today there are impediments as against any non-permanent resident to acquire property here, he may still have an option, he may buy or he may not buy but what is important is that the gate is open. It is for him to enter that gate. Right now, it is closed for him so a process can be given. The people can come from different cultural backgrounds, from different ethnicities. They can come once the gates are opened. Obviously, it is bound to adversely affect the life of people in Jammu and Kashmir and their identity. In fact, their very existence is bound to get affected. How can that be ignored? It is not a simple case of opening the gates for somebody else.