The accepted petition against the constitutionality of Articles 35-A and 370 throws open many questions, the primary one being whether the Supreme Court is competent to decide on the constitutionality of a constitutional provision. The second one stems from the attitude of the Union Government.
Ordinarily, it is the duty of the state to argue in favour of the constitutionality of any impugned provision. It was not unexpected, however, when the Attorney General suggested that we should have a larger debate on Article 35-A. Does this mean that apart from Article 368 which deals with the power and procedure of amending the Constitution (a tardy process), the government has found a shorter way to get it done? Although presumption of constitutionality is a principle of law, it might perhaps function differently when the might of the state is against a law.
Another question that arises is whether there would be a different result if the Union Government is led by a party which believes in Articles 370 and 35-A. Before looking into the constitutionality of the Articles, the Supreme Court has to consider all these questions.
The legal argument is three-fold. First, the President cannot by-pass Parliament’s Amending power, under Article 368, by making an Order under Art. 370. Secondly, he cannot add a new provision Article 35-A.
Lastly, it is violative of “the basic structure” of the State’s Constitution as it violates Article 14, the guarantee of equality before the law.
- The constitutionality of Article 35-A may be challenge on two grounds: first that its very incorporation in the constitution was unconstitutional and thus questioning the entire scheme laid down under Article 370, implicitly questioning the constitutional bridge between the state and the Union? Second, it provides special privileges to the subjects of a particular state? There should be no two ways about the fact that Article 370 is the part of Indian Constitution as it was enacted on 26 November1949 and Article 35-A inexorably flows from the power given to the President under the aforesaid Article. It is now 51 years old trite law and only sanctifies the Maharaja’s Notification of 20 April 1927 which defines state subject and their right to hold the property. Article 6 of the Constitution of J&K puts its seal on that notification. Pertinent to mention that Constitution Application Order of 1954 is an offshoot of the mechanism provided under 370 for making the working of the constitutional relationship between the state and the centre possible. The Drafting Committee presented its report to the J&K Constituent Assembly on 11 February 1954 which recommended certain amendments to the Constitution of India in its application to J&K. Article 35-A was one of them. The report was adopted by the Constituent Assembly of the state and the amendment was incorporated by the Presidential Order of 1954. The recent judgement of J&K High Court on 16 July 2015 regarding SARFAESI Act is of historic significance for its cogent analysis of Article 370 and 35-A. The court while taking a recall of the constitutional history from the time of Maharaja held “Parliament had no legislative competence to make laws in respect of J&K, which would affect the interest of the state subjects of the state defined by Section 6 of the J&K Constitution qua their immovable property.” The Court observed that the constitution of J&K is sovereign in character, and the state assembly exercises sovereign power to legislate laws. In the community of the states in India, in view of the law laid down by the Supreme Court, the State of J&K occupies a distinct, unique and special position. Thus, in law the state of J&K constitutes a class in itself and cannot be compared to the other states. So, Article 35-A is based on solemn pact between the Union and the State and is a result of mechanism which the Constitution itself provides to overcome the constitutional deficiencies created by the conditional accession of the state and therefore cannot be unilaterally altered.
- In the writ petition the petitioners raised political issues more vigorously than legal or constitutional issues. The legal and constitutional issues raised by the petitioners in relation to the inclusion of Article 35-A in the constitution of India have been long before settled by the Supreme Court in various writ petitions notably, PuranlalLakhanpal v. President of India &Ors., AIR 1961 SC 1519, and Sampat Prakash v. State J&K &Anr., AIR 1970 SC 1118.
- In 1961, a five-judge Constitution Bench in PuranlalLakhanpal v. President of India &Ors., AIR 1961 SC 1519, held that when, through an order under Article 370, the President applies any provision of the Indian Constitution to J&K, the term “modification” must be considered in its “widest possible amplitude”. It will not be limited to making only partial changes to the provision, but will include the power to “extend” and “enlarge” the constitutional provision, including making a “radical transformation”. In 1969, another five-judge Bench reaffirmed this view in Sampat Prakash vs State of Jammu & Kashmir.
- Finally, on December 16, 2016, in State Bank of India v. Santosh Gupta &Anr. (2017) 2 SCC 538, a two-judge Bench of the court followed the two earlier Constitution Bench decisions to reiterate that the Presidential Order can “extend” or “enlarge” the provisions of Indian Constitution in its application to J&K.
- The constitutional validity of Article 35-A is, therefore, well established. It protects legislation passed by the J&K legislature relating to benefits to Permanent Residents from challenge on the ground of violation of Fundamental Rights, while extending the chapter on Fundamental Rights of the Indian Constitution to J&K. In that sense, this provision is in the nature of a proviso to the extension of the chapter on Fundamental Rights in the Indian Constitution to J&K. In fact, the Fundamental Rights were extended to J&K through the 1954 Presidential Order.
- Therefore, if the court were to accept the petitioners’ argument challenging Article 35-A, the extension of the Fundamental Rights and every other provision of the Indian Constitution to J&K through consecutive Presidential Orders (all amendments to the 1954 mother order) will cease to apply. Only Article 1 and Article 370 of the Indian Constitution will then apply to J&K.
- Again, in Sampat Prakash (1969), the Supreme Court held that Article 368 of the Indian Constitution, which requires approval by a two-thirds majority in Parliament to amend the Constitution, does not directly apply to J&K. The court held: “Article 368 is not primarily intended for amending the Constitution as applicable in Jammu and Kashmir, but is for the purpose of carrying the amendments made in the Constitution for rest of India into the Constitution as applied in the State of Jammu and Kashmir. Even in this process the powers of the President under Article 370 have to be exercised.” Thus, any amendment to the Indian Constitution (done under Article 368) will apply to J&K only if such amendment is extended to the state by a Presidential Order under Article 370.
- If the legal challenge to Article 35-A is to succeed, the Supreme Court would have to undo the constitutional law on the subject over the last six decades, as well as the application of a large number of provisions of the Indian Constitution to J&K.
- This is why it appears that the challenge to Article 35-A — effectively the last remnant of J&K’s special status — is primarily political and its fate, too, will be decided politically. The other way for the Centre to remove J&K’s special status will be to get the state government’s concurrence to a fresh Presidential Order to remove Article 35-A.
- At the time of J&K’s accession to the Indian dominion, soon after partition, the narrow-minded communalists and majoritarian could not digest the autonomy and the special status granted to the princely state of J&K. To sabotage the autonomous status, RSS and its associate organisations launched a planned and militant agitation in Jammu region against the special position which protected the distinct identity of the state. In early fifties RSS and its avatars, Bhartiya Jana Sangh and Hindu Mahasabha, under the garb of Jammu PrajaParishad, raised the slogan of— “Ek Pradhan, EkVidhan, EkNishan” (one sovereign head, one constitution and one flag). The agitation was patronised by the ultra-Hindu nationalist, Shyama Prasad Mukherjee. There after the effort of the RSS and its political arms, including Jana Sangh and the present-day BJP was to erode and abrogate the Article 370 and the special status of J&K. It remains on their agenda and is being exploited for political and electoral gains. It is a part of this process that a Delhi based NGO, (We the Citizens), at the behest of RSS-BJP combine approached the Supreme Court of India in 2014 and pleaded for declaring Article 35-A as unconstitutional.
- The well-known legal expert and columnist, A.G. Noorani says, the Article 35-A is beyond challenge, because such amendments have been made under Article 371-A in regard to certain special rights conferred on Nagaland, Mizoram, Assam, Manipur, Sikkim, Arunachal Pradesh and Goa. It is a fact that these amendments were generally enacted under Article 368 by the Parliament in exercise of its amending power while Article 35-A was added to the constitution under Article 370, which again is a part of the Constitution of India. As such, Article 35-A flows inevitably from Article 370 of the Indian Constitution. The Constitution of Jammu and Kashmir enacted in 1956 has also put its seal on the relevant notification vide Clause 13. Those who challenge Article 35-A, conveniently forget that it was only Article 1 and Article 370 which were applicable to J&K at the time (1954), the Presidential order regarding addition of Article 35-A was made. As such, the Article 368 could not have been resorted to, for the addition of Article 35-A. It may not be out of place to assert that ‘Kashmir would never had acceded to India’ if it knew that decades later communal minded and chauvinist forces would like to wipe out the notification (Preservation of J&K special status and privileges thereof) which Article 35-A safeguards.
- If the Article 35-A is deleted from the Constitution of India, the accession of the state with the Union of India is liable to be jeopardised. Article 35-A is not the only provision in the Constitution of India in its application to the State of Jammu and Kashmir, which has been added by the President by a Presidential Order issued under Article 370 (1). There are various other provisions which have been added by the Presidential Orders from time to time to the State of Jammu and Kashmir in modified form, whereby some of the provisions have altogether been substituted. In case the power of the President to add/insert any provision in the Constitution of India in its application to the State of Jammu and Kashmir is challenged, the entire Constitutional relationship between the State and Union of India would get affected. In addition, the ongoing turmoil, uncertainty and alienation will grow to the proportion which would be quite unmanageable. The special status and Article 370 will be reduced to a corpse in case Article 35-A is erased. The state will be thrown open to non-state subjects for acquisition of land and settlement. This will add to the sense of insecurity and the feeling regarding the loss of distinct identity. Consequently, it will not only be very harmful to the state but to the entire country. Disruptive elements will get encouraged and return of peace and normalcy will be a distant dream.
- At this juncture all the broad minded and democratic forces including political parties, intelligentsia and the civil society at large, should put their heads together, discuss the situation intensively and launch a concerted struggle against this mischief. While doing so caution has to be exercised so that the forces who profess hyper nationalism for political interests should not divide people of the state on regional and communal lines. The people of Jammu and Ladakh must be convinced that deletion of Article 35-A will prove disastrous for the entire state and will have very unforeseen dangerous consequences. In this regard doubts and reservations of various sections of the society must be addressed and removed. Needless to say, that the secular and democratic sections have to be taken on board as the complete alienation of Kashmiris will be a big challenge to the peace process in the region.
- The legal argument is three-fold. First, the President cannot by-pass Parliament’s Amending power, under Article 368, by making an Order under Article 370. Secondly, he cannot add a new provision Article 35-A. Lastly, it is violative of “the basic structure” of the State’s Constitution as it violates Article14, the guarantee of equality before the law. All three are groundless.
- “The Petitioner is unable to find out as to whether the President can amend the Constitution by incorporating new Article by exercising power under Article 370 (1) (d) of the Constitution of India. The incorporation of new Article namely, Article 35-A to the Constitution of India has been effected vide Constitution (Application to Jammu & Kashmir) order 1954 which is beyond the jurisdiction and power of Respondent No. 1 inasmuch as the said provision namely Article 35-A is unconstitutional”.
- If he had only read Article370 his inability might have vanished. It is part of the same Constitution as Article 368. The 1954 Order under Article370 excludes Article 368 from application to J&K, unless applied to it by an Order under Article 370.
- Article 370 recognises the sovereignty of J&K’s Constituent Assembly as the ultimate ratification authority. Only in the interim was the President empowered to extend Central laws as well as provisions of the Constitution of India to Kashmir “subject to such exceptions and modifications” as he may specify. On 14 May 1954, he added Article 35-A to implement the Delhi Agreement of July 1952. This is a constituent power subject to ratification of the Constituent Assembly.
- Article 14 (guarantee of equality) means that equals should be treated alike. It permits reasonable classification that bears reasonable relation to the object of the law. History justifies this in the cases of Kashmir, Nagaland and Mizoram.
- But “the basic structure” of the Constitution of Jammu Kashmir was flagrantly violated when its elected Sadar-e-Riyasat was replaced by a centrally appointed Governor. So, it was, also, when provisions of India’s Constitution and laws were extended to render its guaranteed autonomy, its heart and “basic structure” nugatory.
Author is an advocate at Supreme Court in New Delhi