Questioning the Article 35A

Questioning the Article 35A

Article 35A of the Indian Constitution has become the new axis for discussion over the Kashmir situation. The Article permits the State Government of Jammu and Kashmir to determine whom in the valley may obtain and retain the status of a permanent resident – and restricts to such people the rights to “employment under the State Government”, “acquisition of immovable property in the State”, “settlement in the State”, “right to scholarships”, and the right to “such other forms of aid as the State Government may provide”.

The question over Article 35A has been raised by a PIL filed by the Delhi-based NGO We the Citizens in 2014. The PIL challenges the constitutionality of Article 35A as a whole and calls for it to be struck down as a whole. The Supreme Court is currently deliberating on the same.

There is no doubt that Article 35A contains dozens of fatal defects – from a moral, practical, and legal perspective. A fair reading by the Supreme Court would likely strip the clause of its efficacy. However, the tension in the valley may prove this move ill-timed – and the Court may take the potential fallout of a just ruling as reason enough to stay their hand.

There are numerous moral failings of Article 35A when we look at its practical application in the valley. The sexist effect it has upon women in the valley, the way it acts to foster an illegal caste system in the region, and the legal limbo it thrusts West Pakistani refugees into are indefensible – and all are morally intertwined with the defense and application of Article 35A.

First, Article 35A is applied in a sexist fashion that has a detrimental effect on the liberty and freedom of choice of women in the valley. Female permanent residents whom marry outside the region are stripped of their right to pass on any property in her possession – effectively forcing her to choose between marrying a man of her choiceor giving her children permanent residence status in her ancestral home. Male residents of the valley suffer no such detriment.

The Articlealso strips away the fundamental rights of those workers and settlers belonging tothe Valmiki community. TheValmikiswere brought to the state during 1957, more than sixty years and three generations ago. They were given Permanent Resident Certificates on the condition that their residiential status – and that of their future generations would be contingent on their working assafai-karmacharis (scavengers). They and their descendants have been barred from right to quit scavenging and choose any other profession – which constitutes nothing less than an outlawed caste system perpetuated under the State Government’s authority.

Finally, Article 35A single-handedly puts into question the status of West Pakistani refugees. As full citizens of India, they are not a stateless people – and cannot avail of the international protections available for stateless refugees. The Government of India has pledged to take care of these refugees as her peoples. Yet by being barred of permanent residentstatus in their home – no matter how many generations they have spent in the valley – bars them from the basic rights and privileges of full citizens of the country.

There are also severalpractically detrimental results that stem from the use of Article 35A. The inability to invest in, own property, or depend on a robust and diverse populace has led to great losses in the private sector. Industry is unable to attract the best talent to the region, and cannot invest in growing a local talent pool – and the difficulty in developing infrastructure is even greater. This same confluence of factors keeps skilled and well-trained medical and legal professionals from the region.

Yet the problems with the clause run deeper still. In addition to the numerous moral and practical objections discussed above, there are significant questions on the legality of Article 35A in and of itself.How it was passed, where it is applied, and what it says are all areas of significant legal questionability.

Article 35A was passed by President Rajendra Prasad within The Constitution (Application to Jammu and Kashmir) Order, 1954. This was ostensibly an exercise of the President’s Article 370 power to apply the Constitution to the region – however there are three fatal defects to this claim. These include its violation of the limiting language within the relevant section of Article 370, its abrogation of the jurisdictional limitation placed upon Article 370, and its usurpation of Parliament’s exclusive power to amend the constitution under Article 368.

First and foremost is the limiting language contained within Article 370’s presidential power. The relevant provision is contained wholly within Article 370(d), which reads: “[S]uch of the other provisions of this Constitution shall apply in relation to that State subject to suchexceptions and modifications as the President may by order specify.”

This power is not a broad-based power to amend the Constitution by presidential Order in any matter related to Jammu and Kashmir. Rather, it is a limited power to apply previously existing provisions of the Constitution to the region, along with relevant modifications, to the region. This means that the President may, by order, apply the Article 312A power to modify the terms of service to the State – either as it is, or with relevant modifications. It does not, however, empower the President to create new provisions of the Constitution wholesale, and apply them across the nation.

Yet this is precisely what Article 35A attempts to do. The concept of “Perminant Residents” as a class above and beyond citizenship is not on contemplated by any provision of the Constitution. Nor is there any concept of state citizenship or state residency – the rights of citizens to reside, work, and purchase property is a function of their nationality, not their regional alligences. Article 35A upends this relationship between citizen and nation – and cannot be seen as anything less than a new substantive provision.

Further, there is the question of jurisdiction. Article 35A was not an amendment that acted only upon the people of Jammu and Kashmir – it applies to all the people of India. However, the provisions of Article 370 apply to grant special status to the State Government of Jammu and Kashmir – but this does not extend to granting the government the right to legislate over the citizens of India outside the state. It is unclear how a regional power can be used to justify national legislation – however this is precisely what Article 35A attempts to do.

Unlike the United States, the unit of Indian sovereignty is the citizen, not the state. The Constitution is empowered by “We, the people of India” – not a collection of independent states. And since the unit of sovereignty is the citizen, there is no concept of state citizenship – only national citizenship. So, when a provision of the Constitution restricts the rights of citizens, this is applicable for all the people of India – not just those subject to some “state citizenship” – the way regional power is exercised in federal governments like the United States.

Article 35A restricts the rights of citizens to seek employment,freedom of movement, holding property, and gain education– all fundamental rights of the Indian citizen, protected under Articles 16, 19(d), 300A, and 21A. This makes Article 35A an abrogation of those rights – which apply against all citizens – a abrogation of their constitutionally guaranteed rights.

Article 35A, therefore, cannot be said to be a regional issue. It limits the rights of all Indian citizens – from Punjab to Kanyakumari – and then permits the State Government to parcel them out. For that reason, the provision is, by its very nature, beyond the jurisdictional limitation within Article 370’s power.

Finally, there is the question of Article 35A’s effectiveness as a constitutional amendment. The President has no independent legislative power – and none of the powers granted to him can supersede the legislative autonomy of Parliament. According to Article 368, the power to amend the Constitution lies solely with Parliament as an extension of their legislative power.

However, Article 35A was not set before Parliament, was not discussed in either house, and was not subject to the rigorous process followed by all the other hundred and one amendments to the Constitution. Instead, it was passed by executive fiat – issued and made law solely by a stroke of the President’s pen. This anomalous state of affairs is reflected in its placement within the Constitution – rather than following Article 35, the relevant section of the document (as Article 21A follows Article 21, Article 300A follows 300, etc.), Article 35 A is buried within Appendix I (The Constitution (Application to Jammu and Kashmir) Order, 1954).

However, as discussed above, Article 35A is not a mere shift in regional application of a constitutional provision – it is a substantive piece of legislation and applies to restrict the rights of all citizens within the Union. As such, the provision is a clear usurpation of the legislative functions granted to Parliament – and only Parliament – under Article 368 of the Constitution.

After examining the legal, moral, and practical objections to Article 35A, it is clear the provision is indefensible. In order to comply with the rule of law, norms of morality, and the best practices of the government, the provision should be stricken down. However, there are a few concerns with resolving the issue of Article 35A at present.

One of these concerns is the tenuous situation of Kashmir. Center-State relations have reached an all-time low: many parties openly embrace separatists, militant anti-government attacks are on the rise, and anti-government demonstrations frequently devolve into stone pelting and rioting.

Largely to blame is the present situation in Kashmir – which has never been worse. Conflict between militants and law enforcement are on the rise, bolstered by large numbers of hired stone-pelters. Things are even worse on the economic front. Between the depressed tourism industry, flight of capital and collapsing hotel industry and the law and order issues already plaguing the valley, the economy is in a state of freefall. This depression in a time of national gain and lawlessness in a time of national order has further alienated the people of Kashmir from the rest of India.

With relations with the state in such a strained state, additional stressors could prove dangerous to the integrity of the Union. This was the rationale that stalled out efforts to repeal/modify Article 370 protections for the state, and it seems likely the same would apply to Article 35A.

Moreover, the political situation in the valley is precarious. While, the government has been formed with BJP as a strong coalition partner, the parties and factions within Jammu and Kashmir are united in their resolve to stymie any efforts at reform.

Current CM Mehbooba Mufti of the People’s Democratic Party has threatened that any effort to challenge the “special status” of Jammu and Kashmir will result in widespread unrest and implied it may increase anti-Hindu attacks in the valley. Omar Abdullah, former CM, has raised the specter of communalism – calling it an act that divides the people on the basis of religion. Even separatist factions like Hurriyat Conference and the Jammu Kashmir Liberation Front have gotten involved – organizing a state-wide bundh to protest the legal challenge to the article.

These implicit and explicit threats speak to the growing specter of state-wide violence sponsored by terrorists, separatists, and religions fundamentalists. The various factions in the region have not pledged to stop, or even disavowed such a reaction – making it much more likely to occur, and much more difficult to stifle if it does.

Make no mistake: Article 35A is an unjustifiable provision legally, practically, or morally. However, the decision to abolish this provision must take into account the current landscape of the region. While the Supreme Court is called upon to rule solely on the law, their eyes cannot be made blind to the fallout from their judgement – as it was during the Ram JanamBhoomi case. For that reason alone, we must be prepared for the Court to stay their hand.

 

By Akash Kashyap

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