Vagaries of Consciousness
- Missteps would have extra-ordinary consequences
The genesis of Article-35A predates the Delhi Agreement of 1952 or even the Accession Instrument (AI) signed by Maharaja Harisingh in 1947. J&K was a princely state and Maharaja Harisingh, acting to redress the apprehensions of the local population regarding emigration in the state, issued two successive Notifications in 1927 and 1932. These notifications essentially made two laws that defined ‘state subjects’ and their special rights and privileges. Maharajah succeeded in securing continuance of these notifications in the AI (discussed below) he negotiated with the Indian government. It is on the basis of this AI that Article 370 has guaranteed Special status to J&K, restricting Union’s legislative powers only over three areas: defense, foreign affairs and communications.
Article 35A was promulgated through a Presidential Order in 1954 after the Constituent Assembly had passed the AI. Curiously, Article 35A is not part of the main text of the Constitution rather it has been placed under Appendix-II. The Presidential Order is issued under the powers conferred on the president by Article 370 of the Constitution.
In Indian constitutional history the doctrine of basic structure (or features) has acquired a growing significance. Earlier, it was thought that the power of the parliament to amend the constitution (Article-368) was unfettered. However, overtime, courts have held that such power is circumscribed by the need to preserve the ‘basic structure’ of the constitution. This is an amorphous term that continues to evolve. One area that has been declared as falling within the ‘basic structure’ is that of the constitution that defines the Fundamental Rights guaranteed. No amendment abridging those rights would be able to pass the test of compliance with the ‘basic structure’.
The Supreme Court of India, in a petition moved in 2014 by little known NGO ‘We the Citizens’, has declared its intensions to hear the petitions. The petitions were set for hearing on 7th August but because one of the bench members was not present it has been set for 27th August. There are two flanks of attack on 35A. One petition (2014) has challenged it on the ground that it is not a valid amendment as it was not approved by the parliament in accordance with the procedure given in Article 368. The other petitions filed in 2017 by two Kashmiri women have challenged it on the ground of being discriminatory. The J&K government filed an affidavit opposing the petitions and praying for their dismissal. The Union government did not file an Affidavit in the earlier petition but in the latter petitions the attorney general told the Supreme Court that Union government was not keen on filing an affidavit in the Article 35A case, instead the government wants a ‘larger debate’. This was a clear indication of Union government’s complicity in the whole affair and became the reason behind uproar in the valley where violent protests have led to strikes, agitation and killing of innocent Kashmiris. The history of Article 35A we have narrated is enough to warn about the explosive nature of this debate and the reactions that would come from its scraping. After 64 years, turning the clock back would be impossible.
The people of the valley know too well that the coercive power of the Indian Union was so overwhelming that they couldn’t successfully oppose it
Prominent Bombay-based lawyer AG Noorani, in an article titled “Article 35A is beyond challenge” writes: “Will that amendment (35A) also be challenged as being violative of “the basic structure” of India’s constitution? For that matter, the others on Nagaland and Mizoram too, to mention two? However, while they were all enacted under Article 368 by parliament in exercise of its amending power, Article 370 is part of the constitution of India as it was enacted on 26 November 1949. And Article 35A flows inexorably from it. It is now 64 years old and only sanctifies the Maharaja’s Notification of 20 April 1927 which defines state subjects and their right to hold property. Article-6 of the Constitution of Jammu and Kashmir, enacted on 17 November 1956, puts its seal on that notification explicitly (vide Clause [3]). So, did the Delhi Agreement of July 1952 between the prime minister of India Jawaharlal Nehru and the prime minister of J&K, Sheikh Muhammad Abdullah. Kashmir would never have acceded to India, even in its hour of peril, if it knew that decades later communal minded persons would want to wipe out that notification which Article 35A sanctifies”.
Article 35A is inextricably linked to Article 370, which was present in the original constitution when it was adopted by Indian parliament. It was not an amendment incorporated in an already existing constitution. The Maharaja entered into Accession Instrument under the Government of India Act 1935 that provided for such accession for states which were not subject to the Act of 1935. Noorani writes, “Everyone knows that the federal part of the 1935 Act never went into force because the princes refused to sign the IAs. Only the part on provincial autonomy in British India and responsible government came into force”.
A more basic issue to contend with is that of the sovereignty that Maharaja enjoyed while negotiating the Accession Instrument (AI). After the preamble that specified and recognised the provision of accession under the Act of 1935, the Maharaja declares: “Now, therefore, I, Shriman Indar Mahandar Rajrajeshwar Maharajadhiraj Shri Hari Singhji, Jammu Kashmir Naresh Tatha Tibbet adi Deshadhipathi, Ruler of JAMMU AND KASHMIR State, in the exercise of my sovereignty in and over my said State, do hereby execute this my Instrument of Accession” [Emphasis added].
The actual clauses of the AI, at every step, keep asserting and affirming Maharaja’s sovereignty, and included the following: (1) the Dominion authority is subject to the terms of AI; (2) only those matters included in the schedule to 1935 Act were allowed for Dominion legislature; (3) the terms of this agreement shall not be varied by any amendment of 1935 Act or Indian Independence Act 1947 unless accepted by me through a supplementary AI; (4) no law shall be made by Dominion legislature to compulsorily acquire land in the State and if needed for its purpose, I will provide at such cost as may be agreed; (5) nothing in this agreement commit to me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the government of India under any such future constitution; finally, and perhaps most importantly, the penultimate clause seals the question of sovereignty: Nothing in this Instrument affects the continuance of my sovereignty in and over this state, or, save as provided by or under this instrument, the exercise of any powers, authority and rights now enjoyed by me as ruler of this state, or the validity of any law at present in force in this state. [Emphasis added]
This, then, is the historical context in which the state of Jammu and Kashmir acceded to Indian Union. The people of the valley know too well that the coercive power of the Indian Union was so overwhelming that they couldn’t successfully oppose it. But now they are faced with a situation where the government seems determined to remove the semblance of constitutional governance in the state of Jammu and Kashmir. The abdication of Union government to contest the petition leaves only the government of J&K and perhaps some far-sighted legal experts to help the Supreme Court to arrive at the correct interpretation of the law and the historical context that led to its evolution. Any missteps in this subtle matter would have extra-ordinary consequences for the peace and tranquility in the state of Jammu and Kashmir.
