Dr. K.L. Bhatia
Introduction — A revisit to Article 35A read with Articles 370 and 368:
Article 35A is a rarest example of invisible State meddling with the Constitution where it has no constitutional mandate. Article 35A was neither a part of the draft Constitution nor a part of the adopted and enacted Constitution of India. This Article was added to the fundamental rights of the Constitution by a Presidential Order, viz., Constitutional (Application to Jammu and Kashmir) Order 1954 of 14 May 1954 which extended the application of various provisions of the Constitution of India to Jammu Kashmir with such modifications, exceptions and alterations with the concurrence of the government of the State. Article 368 was also extended in its application to the State but with a proviso to the effect that “no such amendment shall have effect in relation to the State of Jammu Kashmir unless applied by order of the President under clause (1) of Article 370”. Be that as it may, from the reading of this provision it cannot be construed that the President of India is empowered to exercise the constituent power of the Parliament under Article 368 to add any provision in the fundamental rights part in its relation to the State of Jammu Kashmir. The CO 1954, which superseded Constitution (Application to Jammu and Kashmir) Order 1950 of 26 January 1950, was issued under the permissible limits of Article 370 — a temporary constitutional provision relating to the State of Jammu Kashmir. Article 370 authorizes the President of India to extend the provisions of the Constitution of India in its relation to the State of Jammu Kashmir as the President may by order specify. Article 370 (1) enjoins four clauses, viz., clauses (a), (b), (c) and (d). Article 370 (1) (a) reads as: “Notwithstanding standing anything in this Constitution, the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir”; Article 370 (b) reads as: ” the power of Parliament to make laws for the said State shall be limited to (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for the State”; and (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify; Article 370 (1) (c) reads: “the provisions of Article 1 and of this Article (370) shall apply in relation to that State”. Article 370(1)(d) reads: “such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-section (b) shall be issued except in consultation with the Government of the State; Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government”.
Legal and Constitutional Construction of Articles 35A vis-à-vis Articles 370 and 368:
A plain reading of the language of Articles 370 and 368, both from legalese-imperative positivist as well as creative or pragmatic or realistic or relativist or social engineering interpretation, conclusively construes that it does not authorize the executive head of the Indian State, i.e., the President, to add by enacting any new provision in the text of the Constitution of India in its relation as well as application to the State of Jammu Kashmir. Of course, the President of India does not perform the constitutional functions entrusted to him himself rather acts with the aid and advise of the Council of Ministers headed by the Prime Minister of India, and as such, the text of the Constitution of India does not authorize the Council of Ministers to render such aid and advise to the President of India by adding any provision in the text of the Constitution of India in its relation and application to the State of Jammu Kashmir which is contrary to the constitutional permissibility. The constituent power to amend by way of addition, variation or repeal any provisions of the Constitution of India belongs to the Parliament under the umbrella of Article 368 and this power is an essential constituent function which cannot be effaced or abdicated or handed down to any other agency of the Government. It amounts to usurpation of constituent power by the executive head (President) of the Indian State. Besides, the continuance retention of Article 238 in the textual language of Article 370 is itself ultra vires the basic structure of the Constitution of India because Article 238 stands repealed by the Constitution Seventh Amendment Act, 1956, by the enactment of Reorganization of States Act, 1956, which had done away with the nomenclature of Part A, Part B and Part C States. It seems a paradox! Further, the soup and sauce of the words ‘dominion of India’ and ‘dominion legislature’ could have been evaporated from the language of Article 370, because India and its Legislature are no more ‘dominion’ of any foreign agency or autochthony since India that is Bharat is the sovereign democratic republic from the adoption and enactment of the Constitution of India.
Constitutional (Application to Jammu and Kashmir) Order 1954 — The mother of Article 35A
Could the President step into the shoes of the Parliament while enacting Article 35-A through Constitutional (Application to Jammu and Kashmir) Order 1954? CO 1954 reads that after Article 35, the following new article shall be added, namely: 35A. Article 35A reads:
“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 Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State, —
(a) defining the classes of persons who are, or shall be permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any as respects –
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide; 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 provision of this Part”.
Analysis of Article 35A — Constitutional anomalies: a case for Constitutional Conviviality
The sole object of Article 35A by the Presidential CO 1954 is to provide special rights and privileges to the permanent residents of Jammu Kashmir being citizens of India vis-à-vis the citizens of India, viz., employment in the State Government; acquisition of immovable property; settlement in the State; or scholarships and other forms of aid as per the discretion of the State Government. Article 35A makes a distinction between permanent residents of Jammu Kashmir as citizens of India and citizens of India not being permanent residents of Jammu Kashmir, and refugees from West Pakistan as citizens of India settled in Jammu Kashmir but not being permanent residents of the State of Jammu Kashmir. Both legalese-imperative positivist and creative or pragmatic or realistic or relativist or social engineering interpretation to the language of Article 35A leads to construe that permanent residents of the State of Jammu Kashmir being citizens of India enjoy special fundamental right and privileges within the State and also in any part of the territory of India; citizens of India not being permanent residents of the State enjoy fundamental rights in any part of the territory of India except the State of Jammu Kashmir; refugees from West Pakistan, settled in the State of Jammu Kashmir, not being permanent residents of the State of Jammu Kashmir but being the citizens of India do enjoy the fundamental rights in any part of the territory of India but are deprived to enjoy the rights and privileges within the State of Jammu Kashmir. The provisions of Indian citizenship enjoined in Articles 5 to 11 of Part II of the Constitution of India shall be deemed to have been in relation to the State of Jammu Kashmir as from the 26th day of January 1950 as per CO 1950 and reiterated in CO 1954. The provisions relating to Indian citizenship do not make any of the distinctions as enumerated above. Thus, the classification created by Article 35A suffers from the vice of “intelligible differentia”; this differentia is artificial as it has no rational nexus with the basic object of the Constitution equality. What is the status of West Pakistani refugees? Are they stateless persons? Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu Kashmir they are worst than stateless persons because they cannot enjoy the rights and privileges as being enjoyed by permanent residents of Jammu Kashmir. Their status is unequal amongst the equals. The basic aim and object of equality is rule against arbitrariness; arbitrariness and equality are sworn enemies to each other and do not see eye to eye each other. Equality is a means to achieve the ends of rule of law to serve the rule of life, which seems to be a naught in the case of refugees of West Pakistan settled in the State of Jammu Kashmir. Had they been settled in any part of the territory of India other than Jammu Kashmir, they ought not to have been the sufferers. In the background of this submission, it appears that Article 35A does not seem to be compatible with the basic feature of the Constitution of India.
The Supreme Court of India in Bachan Lal Kalgotra v. State of Jammu and Kashmir had lost the opportunity to explain the constitution truth of Article 35A. It shows that the Apex Court has “vast undone” approach to the interpretation of Article 35A. The Apex Court had observed: “In view of the peculiar Constitutional position obtaining in the State of Jammu and Kashmir, we do not see what possible relief we can give to the petitioner and those situate like him. All that we can say is that the position of the petitioner and those like him is anomalous. … We are, however, unable to give any relief to the petitioners.”
It appears that how the refugees from West Pakistan domiciled in the State of Jammu Kashmir have been made hapless victims in their own soil which they own close to their heart and soul. What a paradox!
Let us see how does the Apex Court in a writ petition 2015 challenging the constitutionality of Article 35A vis-à-vis Articles 370 and 368 interpret the language of Article 35A that shall be an attempt to the expounding of new Constitutional Patriotism Jurisprudence.
(The author is former Head, Dean and founder Director The Law School, Faculty of Law, University of Jammu)
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