by M J Aslam
After seven decades, Muslims in Jammu and Kashmir are struggling hard to protect “semblance” of their unique culture and identity that was “guaranteed” to them under Articles 370 and 35-A by the givers of the Indian Constitution. For 70 years, Article 370 has served Delhi’s interests beyond its expectations, internally as well as externally, keeping in view geo-political challenges it faced. It was this Article that rescued India by advancing on it an argument of “legal relationship” with the State.
Article 35-A is an offshoot of Article 370. With legal pratfalls to final burial of the remnant “empty shell” of Article 370 for it’s inbuilt “irremovability clause” in it, the challengers of these provisions changed the direction of their “legal tirade” straight against Article 35-A. They know by its removal, their “ultimate agenda” of changing Muslim majority character of Jammu and Kashmir will automatically be fulfilled. God forbid, if it happens, it will be a bigger deathblow to Muslims in the state than genocide of Jammu Muslims of 1947 with devastating consequences.
It may be noted that the Presidential Order of 1954 is that mega Presidential Order (PO) that extended a number of central laws and provisions of the Indian Constitution to the State besides adding Article 35-A to it. Article 35-A has not been incorporated to the Constitution in isolation. It is a part of plethora of items and laws mentioned in the PO of 1954 that has provided a constitutional link to India to have and hold Jammu and Kashmir. There is no questioning about the other items brought by PO of 1954 and a number of other Presidential Orders that extended and applied almost entire Constitution of India to Jammu and Kashmir. The only festering sore with communal-minded people is Article 35-A. The fascist intention concealed behind a facade of a legal right to challenge this original Constitutional Provision in “national interest” is manifest. RSS backed groups like “We the Citizens”, “the Jammu & Kashmir Study Centre” and others have challenged the constitutionality of Article 35-A in the Supreme Court where it is pending argumentation and adjudication. It is posted for August 6, 2018. In the absence of elected government, the case seems to be virtually defenseless from the State side for “apparent reasons”. Perhaps, for this single reason hearing the cry and call of overwhelming majority of the State, the Governor has reportedly asked the CG to seek deferment of the case in the Supreme Court till elected government is in place in the State to “defend” Article 35-A. (GK, dated 28-07-2018). But the CG response to this Governor’s request remains to be seen, albeit the CG stand on Article 35-A is not hidden from anyone.
Points And Counterpoints
Firstly, it is argued that the special status, certain rights and privileges, enjoyed only by the residents of the State under these constitutional provisions has given rise to alienation and separatist tendency to the people of Jammu and Kashmir. This argument is absurd for several reasons:
(1) If these provisions had not been inserted into the Constitution, India would have lost J&K long back. These provisions facilitated India to buy time, procrastinate and ultimately deny its own promised right of self-determination to the people of Jammu and Kashmir.
(2) These provisions furnished a constitutional link between India and Jammu and Kashmir. These provisions are aboriginal in the Constitution.
(3) Does it mean that by incorporating these provisions, the lawgivers and founding fathers of Indian nation afforded alienation and separatist identity to the people of Jammu and Kashmir? Are the petitioners wiser than them? These provisions in a way helped Indian in assimilating and integrating Jammu and Kashmir with it. Without these provisions, what was the relation between Jammu and Kashmir and India, except military control?
(4) If the petitioners refer to the separatist organizations in Jammu and Kashmir, then, they forget for 23 years Sheikh Abdullah too had cherished such inclinations. And, separatist parties have been there in Jammu and Kashmir right from 1947. It is nothing new keeping in mind political history of Jammu and Kashmir.
(5) Since treachery, betrayals, backtracking by local and Indian leaders on their promises and Indian State’s harsh treatment meted out to Jammu and Kashmirpeople, predominantly Muslims, have already and largely alienated them from Indian mainstream politics and any more attempt on abrogation of Article 35-A would only strengthen roots of alienation and separation from India in Jammu and Kashmirpolitical scenario. It is historically and factually correct that huge chunk of population of Jammu and Kashmiralready feel backstabbed and alienated which is writ large from innumerable gatherings and rallies of Jammu and Kashmirpeople protesting against Indian atrocities.
Secondly, it is argued that this provision does not allow people from outside Jammu and Kashmirto work, settle or own property in the State, and that right of employment in government departments and scholarships, different forms of aid and welfare are confined to State Subjects. This argument is again missing the point that the special rights and privileges conferred on Jammu and KashmirState Subjects by Article 35-A are nothing new. These rights and privileges were recognized since earliest times of 1900 in J &K and this provision based on Delhi Agreement of 1952 simply recognizes an already existing position of law (Ref Maharaja Hari Singh’s Notifications of 1927 and 1932 which also in vogue in PaK, GilgitBaltistan). Without recognizing and affording these certain rights and privileges to Jammu and Kashmir, no democratic and constitutional relationship between the State and India would have ever come into being and operated till now.
Thirdly and mainly, it is argued that the President did not follow procedure established under Article 368 by presenting Article 35-A for approval before Parliamentand that the PO of 1954 ‘added’ a new “Article 35-A” to the Constitution while addition or deletion of an Article amounted to an amendment to the Constitution which could be done only by Parliament and Article 35-A was brought about by the “executive order” when actually the right of amendment of the Constitution lies with the legislative organ of the State. Therefore, Article is ultra vires the basic structure of the Constitution since it violates the Constitutional procedures established by law.
This argument, at its face, ignores basic facts. It is true that amendment to the Constitution of India could be done only by Parliament under Article 368. But, it is equally true that Proviso added to Article 368 (2) by the Constitution (Application to J&K), Order, 1954, makes operation of Article 368 subject to Article 370 (1) and that Article 370 begins with non obstante clause “notwithstanding anything in this Constitution………..” which means that Article 370 would operate and has operated despite that there being no such provision anywhere in the Constitution allowing the President, inter alia, under sub article (1) clause (d) to apply constitutional provisions to the State with “such exceptions and modifications as the President may by order specify…..”.
The object behind enacting Article 370 was to recognize the special position of the State of Jammu and Kashmirand to provide for that special position by giving power to the President to apply the provisions of the Constitution to Jammu and Kashmirwith such exceptions and modifications as the President might by order specify. While interpreting the word “modification” used in article 370, the Seven Judges Constitution Bench of the SC held that “……., it means that he (President) may vary (i.e., amend) the provisions the Constitution in its application to the State of Jammu and Kashmir. We are, therefore, of opinion that in the context of the Constitution, we must give the widest effect to the meaning of the word “modification” used in Article 370 (1) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Article 370(1) only to such modifications as do not make any “radical transformation…. If, therefore, the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir, it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. …..” (Puranlal Lakhanpal v. President of India, AIR 1961 SC 1519 (1962) 1 SCR 688 (07 judges) wherein challenge to PO of 1954 was made on certain other grounds; followed in Sampat Prakash v. State of J&K, AIR 1970 SC 1118; Ashok Kumar v. State of J&K, 2015, emphasis supplied ).
In the light of the said ruling of the Supreme Court, there is hardly any doubt left to disagree that the President has had the widest powers under Article 370, of course, with concurrence of the State Government, to pass PO of 1954 that, inter alia, has incorporated Article 35-A in the Constitution.
Rules of interpretation
It has to be noted that Article 370, under which PO of 1954 has been passed, is an original provision of the Constitution, as such it cannot be repugnant to other provisions of the Constitution of India in view of cardinal rule of interpretation of the statutes, that is, “In CivileEst Nisi Tota Lege Perspecta Una Aliqua Particula Ejus Proposita Judicare Vel Respondere’ (construction is to be made of all parts [of a statute] together, and not of one part only by itself). Even if it is presumed to be an exception, there are exceptions to every rule. Under the Constitution, only States and not Union Territories have Legislature, as yet, UT of Pondicherry has a Legislature. This is an exception to the general rule.
On the basis of expediency and political history, there are special provisions contained under Article 371 (A) to 371 (I) with respect to the states mentioned therein. Likewise, Article 370 is also a special provision with respect to Jammu and Kashmir. Furthermore, the rule In CivileEst Nisi Tota Lege Perspecta Una Aliqua Particula Ejus Proposita Judicare Vel Respondere’ cannot be partly applied to PO of 1954 to scrap down Article 35-A [only] that it added to the Constitution while allowing all other amends, modifications and exceptions, it made to it by extending many other Constitutional provisions to the State. If the PO of 1954 is selectively targeted to achieve the “hidden agenda” of the petitioners, then, it must throw all other POs open to challenge because they emanate from the same source of Article 370?
Secondly, it may be mentioned that in India, it is the Constitution that is supreme and not the Parliament. Parliamentary sovereignty is subordinate to the Constitution and aboriginal provisions like Article 370 of which Article 35-A is an offshoot cannot be abrogated. Moreover, their genesis lies in the solemn pledges of Indian leaders with the ruler and leaders of Jammu and Kashmir.
Thirdly, the Constitution of India is supreme law of India. As it is a creation of the Constituent Assembly of India and not that of Parliament, it cannot be overridden by Parliament in any manner whatever except that it can be amended from time to time to keep pace with changing circumstances. Nevertheless, what constitutes pith and substance or basic structure of the constitution that cannot be changed by any amendment to it? Initially, the basic structure doctrine was confined to fundamental rights only but at present this doctrine encompasses within its grip many other ideas and principles that lay deep in the Constitutional provisions. Article 35-A is a part of that basic structure of the Constitution, acknowledging the trust that people of Jammu and Kashmirreposed in Indian State at the time of its accession under extreme conditions and so, it cannot be abrogated. It is grounded in the commitment and pledge made by India to the people of Jammu and Kashmirunder the Delhi Agreement of 1952 signed between Sheikh Abdullah and Pandit Nehru. The claim of any particular feature of the Constitution to be a “basic” feature would be determined by the Court in each case that comes before it. (Indira Nehru Gandhi v. Raj Naraian, the Minerva Mills case).
Fourthly, the doctrine of textualism cannot be invoked to judge the validity of this provision by showing mere adherence to its text without considering (1) the “special circumstances” that led to its incorporation in the Constitution and (2) the objective that it achieved for [Dominion of] India would not be a valid method of interpretation as the theory of textualism is no more treated good rule of interpretation.
Fifthly, the US Supreme Court has evolved and accepted the rule of originalism while interpreting any provision of the Constitution which, inter alia, mandates the Court to interpret the challenged provision consistent with its original purpose. The Interpreting Court cannot, therefore, lose sight of the purpose behind incorporation of a provision in the Constitution.
Sixthly, the Parliament has no power to legislate, inter alia, about the subjects of the land and other immovable properties of the State which has its own piece of legislation, the Transfer of Property Act, 1882, that deals with these subjects. No Presidential Order passed under Article 370 has till date extended and applied the Parliament’s power to legislate on “land and immovable properties” under Entries 6 and 11-A of the Concurrent List to the State of Jammu and Kashmir. The power to legislate on these subjects is vested in the State Legislature itself. (Bhupinder Singh Sodhi v Union of India,  1 SLJ 105).
Although the Jammu and KashmirHigh Court decision in Bhupinder Singh Sodhi case stands overruled by the Supreme Court in State Bank of India v. Santosh Kumar Gupta, decided on December 16, 2016, making the SARFAESI Act applicable to the State, as yet, the Supreme Court has upheld the property rights of the State Subjects in these words:
“The State List continues to be omitted altogether, and from 1963 onwards, the Concurrent List applies to the State of Jammu & Kashmir with a number of Entries being omitted. What is of importance for the decision of this case is that Entry 6 dealing with the transfer of property and Entry 11A of the Concurrent List do not apply to the State of Jammu & Kashmir? Entry 6 does not apply because it has not been extended to the State, and Entry 11A does not apply because the 42nd Amendment to the Constitution of India, which introduced Entry 11A into the Concurrent List, is itself not applicable. (Emphasis added). The SC continued to hold that Rule 8(5) proviso of the Security Interest (Enforcement) Rules, 2002 makes it amply clear that section 140 of the Transfer of Property Act of Jammu & Kashmir will be respected in auction sales that take place within the State. (Ibid)
A curious point
Moreover, the Central TP Act does not apply to the State. Now, assuming, Article 35-A is removed from the Constitution, then, it means that the State’s TP Act, 1882 has also to go and be replaced by the Central TP Act, 1882. But, is it possible to apply the Central TP Law directly to the State by bypassing the procedure under Article 370? Apparently, such consent will not come from State government if of the elected members of the State Assembly.
Had it been so, then, the present ruling party of India did not need consent of the State Government to extend the Central GST Law to the State by passing on the same day of enactment (8th July, 2017) yet another Presidential Order under Article 370 (1). The stand of the State Government and all parties of Jammu and Kashmir except BJP on Article 35-A is public and clear that no change in this field of “special position” of Jammu and Kashmir shall be accepted.
Last but not the least, there are some other issues too raised in these writ petitions concerning the “State subject” women marrying non-State Subject men and, the incidental property rights of their descendants touched upon by State property and citizenship laws. They being the “subsidiary issues” could be properly handled by the State Legislature by incorporating necessary changes in the State Subject Laws in this regard.
(M J Aslam is author of a number of books on law. He is also academician, story-teller and freelance columnist. Presently, he is AVP in Jammu and Kashmir Bank Ltd. The views expressed in this column reflect those of the author and not of the organization he works for. )