It’s an anomaly

Kashmir is boiling over Article 35A, the constitutionality of which is under attack. The Supreme Court is set to adjudicate on whether it is violative of the basic structure of the Constitution. Chief Justice Dipak Misra verbally observed that the court would examine its constitutionality, conferring special status on the state and people of Jammu and Kashmir.

Article 35A empowers the state legislature to define “Permanent Residents” (PR) of the state and provides special rights and privileges to them. It is an anomaly. The article is not to be found anywhere in the Constitution, not even in the text of the Constitution published by the Government of India. It was added through a Presidential Order, namely, The Constitution (Application to Jammu and Kashmir) Order, 1954. Thus, it is an extra-constitutional article not to be found in the body of the Constitution. So, it is debatable how a Presidential Order acquired the status of an article of the Constitution. Nothing can be added to or deleted from the Constitution without following the procedure prescribed by Article 368 which provides for amendment.

On 14 May 1954, President Rajendra Prasad, exercising his power under Article 370(1), on the advice of the union cabinet and with the concurrence of the Government of J&K, issued it. Superseding the earlier Order of 1950, it extended the application of various provisions of the Constitution, including Article 368. However, its application was subject to a proviso that “no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by the order of the President under clause (1) of Article 370”.

Article 370(3) provides that the President may, by public notification, declare that this article shall cease to be operative or may be operative only with such exceptions and modifications and from such date as he may specify. However, it can be done only on the recommendation of the Constituent Assembly of Jammu and Kashmir.

So, Article 370 empowers the President to make it inoperative but does not empower him to add any new provision to the Constitution. And the power given to the President to make it inoperative is rooted in the fact that it was a temporary provision as the heading of the article reads: “Temporary provisions with respect to the State of Jammu and Kashmir”. J&K high court had ruled in 2015 that Article 370 is “permanent, beyond amendment, repeal or abrogation”. The Supreme Court immediately struck it down when it was informed that it can be repealed by Parliament. Besides, Article 370(3) is now obsolete after 26 January 1957, when a new J&K constitution was enforced and the state Constituent Assembly ceased to exist.

Article 35A says that no existing law in force in J&K, and no law hereafter enacted by the legislature of the state defining the classes of persons who are, or shall be, PRs of the state, or conferring on such PRs any special rights and privileges or imposing upon other persons any restrictions with respect to employment under the state government, acquisition of immovable property in the state, settlement in the state, or right to scholarship 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.

This is being decried as discriminatory and unconstitutional. Jammu and Kashmir Study Centre has impugned its constitutionality in the apex court. Besides, Charu Wali Khanna has challenged Section 6 of the J&K Constitution, which curtails the freedom of women to marry men of their choice by not giving the heirs any right to property if the woman marries a man not holding the PR certificate. Her children are denied a PR certificate rendering them illegitimate even though she is a PR. Ironically, the woman also forfeits her property rights. However, it does not apply to a man marrying a woman outside J&K.

This is a glaring example of gender discrimination that while men can marry anyone outside the state or even India and continue to enjoy full rights, women lose all rights if they marry outside the state. Thus, while Mehbooba Mufti’s sister Rubaiyya Sayeed is divested of all rights after marrying a non-Kashmiri, her brother Tasadduq Mufti enjoys all rights despite marrying a woman outside the state. So is the case with Omar Abdullah and his sister.

Subjects?

The J&K Constitution, adopted on 17 November 1956, defines a PR of the state as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has lawfully acquired immovable property in the state. The use of the word “subject” here is intriguing — “a person who was a state subject on May 14, 1954”. India was a democracy in 1954 and J&K was its integral part. So, how was the word “subject” used?

It reminds one of Thomas Jefferson, who on the last page of the rough draft of the Declaration of Independence wrote something and then made it completely illegible by putting ink on it and wrote “fellow-citizens”. Later, a researcher, curious to know what was it that Jefferson tried to hide, uncovered it using a technique called hyperspectral imaging. She was dumbfounded to see that he had written “fellow-subjects” and then corrected it to “fellow-citizens”. Unconsciously, he used the words that evoked the very monarch he was challenging — old habits die hard.

Was J&K still a monarchy in 1954? Was the integration with India still not complete? Dogras agitated for the complete integration of the state with India and it was expressed in the rallying cry ‘Ek vidhan, ek nishan, ek pradhan’ (one constitution, one flag and one president). In fact, Syama Prasad Mukherjee tweaked that to the slogan — Ek desh mein do vidhan, do nishan, do pradhan, nahin chalenge, nahin chalenge (two constitutions, two flags and two presidents in one country- not acceptable).