Article 35A: A Constitutional Shield For RSD

Historical Background

The state of Jammu and Kashmir finds its roots largely in the Treaty of Amritsar of 1846, through which an amalgamation of various small territories were gifted to a Dogra lord as a reward for his cooperation with the victorious British in the Anglo-Sikh War. The Dogra ruler Maharaja Hari Singh imported civil servant from Punjab into the Dogra administration which resulted in the poor representation of Kashmiri pundits in the civil services. The Kashmiri people agitated against this importation as they apprehend it is an attack on their livelihood. This movement is known as ‘Kashmir for the Kashmiris’. It was sponsored by the more educated Kashmiri pundits. Kashmiri Pandits, therefore, advocated for the issuance of a state subjects definition that would offer them advantages in obtaining employment. Such matters were largely irrelevant to Kashmiri Muslims, who were shut out of the employment pool almost entirely, due to their comparative socio-economic disadvantage and the communal nature of the Dogra rule. In   1927 a law defining a “Hereditary State Subject” was issued forbidding the employment of non-state subjects in the public services; they were not allowed to purchase land. 

The Jammu and Kashmir Constitution was adopted by the Constituent Assembly of  Jammu and Kashmir on Nov. 17, 1956. Part-III of the Constitution of Jammu & Kashmir, consisting of Sections 6 to 10 deals with permanent resident of the State.  Section 6 defined state subjects identically to the definition under Dogra rule, grafting on the requirement of Indian citizenship and renaming them permanent residents. Section 8 vests exclusive authority to define permanent residents with the state legislature while section 9 requires a two thirds majority for any change made by the state legislature to the definition of permanent residents and Section 10 states rights enshrined in Indian Constitution vest in the permanent residents of Jammu and Kashmir. 

Article 35-A of the Indian Constitution also protects this right, providing that, notwithstanding anything contained in the Indian Constitution, no law created by the Jammu and Kashmir legislature defining permanent residents or conferring special rights upon permanent residents may be struck down on the grounds that it is inconsistent with any rights conferred on the other citizens of India”.

Thus, the Indian Constitution endorses the fact that the state legislature of Jammu and Kashmir is competent to define permanent residents and conferring rights upon them at the exclusion of all other citizens and such laws cannot be challenged as violative of the rights enshrined in Part-III of the Indian Constitution.

Special Status of Jammu and Kashmir

The Bharatiya Janata Party and the Hindutva forces have expressed uneasiness about Article 370 as insult to Indian federalism because it gives special status to Jammu and Kashmir.  For them Article 370 of the Indian constitution  is an instrument of oppression and discrimination against Indian citizens. What they need to understand is that the unique treatment given to the unequal but special states of India was due to historical factors or because specially placed people needed special treatment. There is not a straight jacket formula of federalism existing in the world. The federal structures of various nations varies markedly from that of United States of America. So is Indian federal structure different from others. The bond of Jammu and Kashmir with India is based on the agreement subject to fulfilment of certain pre-conditions i.e., right of self-determination.  

Permanent Residential Status

Further the concept of a permanent residential status as a basis for according special privileges to residents of an area is no stranger to Indian governance. Nor, indeed, is the idea that the ownership of immovable property rights should be confined to certain people in certain areas. Today the hill states of Himachal Pradesh and Uttaranchal have limited land ownership to their residents. In relation to Nagaland and Mizoram, the Indian Constitution permits special laws in respect of “ownership and transfer of land and its resources.” The Fifth Schedule of the Constitution contains special provisions to limit land transfers among tribals. The Supreme Court in the Samata Case (1997) also uphold the constitutional validity of Fifth Schedule of the Constitution. Such policies exist throughout the Northeast and tribal areas. Thus the Indian Constitution not only permits, but also ordains various states to enact special laws to limit the ownership of land to some designated residents. (Rajiv Dhavan,The J&K Bill 2004; The Hindu; March,19,2004; www.hindu.com)  In Madhu Kishwar & Ors v. State of Bihar and Ors (1996 AIR 1864, 1996 SCC (5) 125)  court refused to strike down the provision of Chotanagpur Tenancy Act, 1908 as violative of right to equality. Thus the court uphold the exclusive right of male succession, but gave a limited right of livelihood to tribal women in the land. However, the permanent residential status of Jammu and Kashmir had witnessed a cataclysmic response from the corridors of Judiciary in Jammu and Kashmir. For a quiet long the judiciary recognized the precedence of state subjects rights over the individual rights. But in case of Dr. Susheela Sawhney v. State of Jammu and Kashmir (AIR 2003 JK 83) it changed its earlier stand and gave preference to individual interests over the public interests.  It was only in his case  that the judiciary replied in affirmative to question regarding continuance of permanent residential status of married women. This judgment should be reviewed and brought in line with the greater interests of public at large. There are significant Supreme Court decisions, which deny status benefit to an outside woman marrying into an SC or an ST group. Likewise is the law on permanent residential status which intends to bar the non-permanent residents to avail the benefits either directly or indirectly. 

Issue of West Pakistan Refugees

Article 35A is couched in such terms that it leaves no scope for the non-residents to acquire any right which are enjoyed by permanent residents. The permanent residential certificate is like nationality of a resident of Jammu and Kashmir. The recommendations of Joint Parliament Committee on permanent settlement of West Pakistan refugees in the state and giving them the voting right are ridiculous and devoid of any legality. Such and any such attempts will certainly change the demographic structure of Jammu and Kashmir. 

Conclusion

If permanent residential status will become obsolete, it will enable outsiders to exercise all the rights which have been so far restricted to residents of Jammu and Kashmir.  Kashmir will no more remain for and of Kashmiris, as demanded and ensured by the then pundits and Maharaja respectively. Those pleading for Abrogation of Article 35A are intending to dilute the right of self determination of people of Jammu and Kashmir. Although permanent residential status and right to self-determination (plebiscite) had originated in two different times and had different historical backgrounds yet they have great resemblance.  Article 35A provides a complete shield to right of self-determination. The fate of people of Jammu and Kashmir is to be decided by the permanent residents. Abrogation of Article 35A will render right of self-determination a toothless right. And by doing so what they want to do, probable,  is to hold plebiscite in Jammu and Kashmir somewhere in future, but by the people of their own choice. 

—Author is Assistant Professor, School of Legal Studies, Central University of Kashmir: He can be reached at: [email protected]

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