Supreme Court Defers Article 35A Case
On August 6, 2018, the Supreme Court bench of Chief Justice of India (CJI) Dipak Misra and Justice A.M. Khanwilkar adjourned a scheduled hearing into a group of petitions questioning the constitutional validity of Article 35A. The court said that a three-judge bench needs to determine whether the matter should be heard by a five-judge constitution bench. On August 6, only two judges were present, as Justice D.Y. Chandrachud, the third member of the bench, was not there. The chief justice fixed August 27 to begin the further hearing by a three-judge bench to determine whether the matter should be heard by a constitution bench or not. “Only one thing is to be heard whether Article 35A goes against the basic structure or doctrine of the Constitution. No other argument can be made,” said the Chief Justice of India.
Both the state government of Jammu and Kashmir and the Centre sought adjournment of hearing citing the panchayat elections in the state as a reason. Another reason would be that as the state is under governor’s rule, the onus of law and order rests on the Centre, and the Centre did not want trouble in the state.
About Article 35A
Article 35A is located in Appendix-1 of the Constitution of India within the text of Presidential Order, 1954. The article was incorporated into the Constitution by the orders of the then president, Rajendra Prasad, on the advice of the Jawaharlal Nehru cabinet. The Constitution (Application to Jammu and Kashmir) Order of 1954 came after the Delhi Agreement of 1952 between Jawaharlal Nehru and the then Prime Minister of Jammu and Kashmir, Sheikh Abdullah; by the 1952 agreement, Indian citizenship was extended to the ‘state subjects’ of Jammu and Kashmir with the state retaining the power to legislate over the rights and privileges of the state subjects, now to be called permanent residents.
The presidential order was issued under Article 370 (1) (d) of the Constitution, a provision that allows the president to make certain “exceptions and modifications” to the Constitution for the benefit of ‘state subjects’ of Jammu and Kashmir.
Under Article 370 of the Constitution of India, a special status is granted to Jammu and Kashmir, while under Article 35A special rights are ensured for the permanent residents of Kashmir.
Article 35A gives the legislature of the state of Jammu and Kashmir complete power to define ‘permanent residents’ of the state, and to grant such persons special rights and privileges. The people holding the Permanent Resident Certificate (PRC) in Kashmir have exclusive right to acquire property in the state, besides enjoying special rights and privileges in the state’s public sector jobs, acquiring scholarships and enjoying other public aid and welfare programmes.
Under Article 35A of the Indian Constitution, non-permanent residents of Jammu and Kashmir are not allowed to acquire immovable property, state-sponsored scholarships and aid in the state, among other related provisions. The Jammu and Kashmir government is forbidden from hiring people who are non-permanent residents. And only permanent residents can stand for election in the state. (According to the Jammu-Kashmir Constitution, a permanent resident is a person who was a subject of the state on May 14, 1954, or who has been residing in the state for a period of 10 years, and has “lawfully acquired immovable property in the state”.)
No act of the state legislature within the ambit of Article 35A can be challenged on grounds of violating the Constitution of India or any other law of the land.
The Petitions before the Supreme Court
An NGO, We the Citizens, filed a writ petition in the Supreme Court challenging the validity of Article 35A as well as Article 370. It argues that Article 370 was only a ‘temporary provision’ to help normalise the situation in Jammu and Kashmir and to strengthen democracy in that state. The Constitution framers had no intention of turning Article 370 into a means of bringing about permanent amendments in the Constitution such as Article 35A.
Article 35 A, according to the petition, went against the “very spirit of oneness of India” as it created a “class within a class of Indian citizens”. It violated the fundamental rights of citizens under Articles 14, 19 and 21 of the Constitution through placing restrictions on people from other states in matters of employment or buying property within Jammu and Kashmir.
Moreover, the provision in Article 35A that grants special rights and privileges to permanent citizens appears as an ‘appendix’, and not as an amendment made by Parliament.
The article was incorporated in the Constitution bypassing the parliamentary route of law making; the Constitution allows only Parliament to amend the Constitution. The question arises whether Article 35A is void because the government of the time did not place it before Parliament for discussion. In a judgement given by a five-judge bench of the Supreme Court in March 1961 (in Puranlal Lakhanpal vs. The President of India), the court observed that the president may modify an existing provision in the Constitution under Article 370, but does not say whether that power extends to introducing a new article in the Constitution without the knowledge of Parliament. This question remains unanswered and open to discussion.
Another petition has been filed by a native of Jammu and Kashmir, Charu Wali Khanna, challenging Article 35A for restricting the basic right to property if a native woman marries a man who does not hold a permanent resident certificate. The petition points out that the woman’s “children are denied a permanent resident certificate, thereby considering them illegitimate.”
The Government of Jammu and Kashmir has maintained that the President had the power to incorporate a new provision in the Constitution by way of an order.
The central government, however, has refused to take a stand on the issue: Attorney General K.K. Venugopal stated before the court that the matter was “very sensitive” and required a “larger debate”.
Views
Those supporting the petition point out that Article 35A has worked to prevent Jammu and Kashmir from developing a sense of belonging for India, and has served to isolate the state from the economic and cultural evolution of the country. Such articles, it is observed, embody the essence of alienation and even secessionism.
However, the revocation of Article 35A has become a major concern for many people in Jammu and Kashmir including both mainstream politicians and separatist leaders. They have joined in opposing any modification of this constitutional article. It is feared that modification or revocation of the article may stoke the separatist fire. Many in the entire state and not just the valley worry that there will be a huge influx of population from other states of India, upsetting the demographic profile of the state of Jammu and Kashmir.