Why Article 35A Needs To Go

"There is an argument projected that the President has no powers to amend the Constitution. The fact of the matter is Article 35A is not part of the Constitution of India. So there is no requirement of Parliament, amending it,” said Jehangir Iqbal Ganai, Advocate General of Jammu and Kashmir (J&K), to a leading national daily, in an interview in November 2017.

Ganai and many wilfully ignorant people like him have made desperate attempts to justify the unlawful continuation of Article 35A. What exactly is Article 35A? Well, it empowers the J&K state legislature to define permanent residents and then give them special treatment, privileges and rights. This special treatment is with respect to employment with the state government, acquisition of immovable property in the state, settlement in the state, right to scholarships and such other forms of aid as the state government may provide.

However, the very fact that Article 35A came into being vide a presidential order in 1954 and was not added to the Indian Constitution through a routine parliamentary amendment vide Article 368, that Article 35A was only added via an annexure by alienating and superseding the parliamentary process, that Article 35A owes its origin to Article 370(1)(d), which in turn was always meant to be ‘temporary and transitional’ in any case, that Article 35A is against the basic ethos espoused under Article 14 of the Constitution which upholds equality before law and equal protection of laws within the territory of India, that Article 35A violates the basic structure of the Constitution by flouting Article 14 which prohibits the state from discriminating against persons on grounds of religion, caste, creed or place of birth, that Article 35A disenfranchises children born to Kashmiri women who do not marry "natives", are all glaring examples of the fact that Article 35A has outlived its utility long back and exists today as one of the worst reminders of the politics of appeasement and opportunism that was nurtured by India's erstwhile prime minister, Jawaharlal Nehru.

Going back in time, it is true that after the Delhi agreement of 1952 under Clause 6, the Central government under the aegis of Nehru, in a classic reflection of Panditji's poor administrative skills and even poorer vision, appreciated the need for special rights that existed vide notifications issued in 1927 and 1932, under the Dogra ruler, Maharaja Hari Singh of J&K.

It is also true that like any of the 565 princely states, after J&K's unconditional accession to the Indian Dominion on 26 October 1947, Sheikh Abdullah took over reins from the Dogra ruler and in 1949, he negotiated J&K's political relationship with New Delhi, which led to the inclusion of Article 370 in the Constitution. Article 370 under Part XXI, guarantees special status to J&K, restricting the Union's legislative powers to only three areas; defence, foreign affairs and communications. After J&K's Constitution was framed in 1956, it retained the erstwhile Maharaja's definition of "permanent residents".

Fear that removal of Article 35A would lead to erosion of J&K's autonomy and trigger demographic changes in the Muslim majority Kashmir valley, are a bag of lies, fanned by separatists, armchair activists and those who neither believe in Insaaniyat Kashmiriyat or Jamhooriyat. If fears of a demographic invasion were indeed true, why is it that in the last 70 odd years, the core demography of Kashmir Valley has remained largely unchanged, even as the Hindu majority in Jammu and Buddhists in Ladakh, have all the rights to buy property and settle in the Valley?

The uncomfortable truth if anything, is the fact that Article 35A is a political tool by politically irrelevant groups like the Hurriyat to keep the embers of separatism burning, though things have improved dramatically under the Narendra Modi dispensation. True, while the voter turnout in the urban local body (ULB) polls, which were held after a gap of 13 long years, was just 8.3 per cent in the Muslim dominated Kashmir Valley, it was more than 70 per cent in Rajouri and Poonch, with Kargil recording an excellent voter turnout of 77. 3 per cent, signalling the fact that the average Kashmiri believes in equality and democratic institutions and not an archaic Article 35A, for whatever it is worth!

Coming back to legalities, does the President of India have the sole power to amend the Constitution through an ‘order’? The answer is a clear ‘No’ and has been settled in the Puranlal Lakhanpal Vs President of India, case of 1961. True, the President of India who is the head of the executive, has legislative power under Article 123 of the Constitution to make an ordinance when either house of the Parliament is not in session, but the ordinance within six months, has to be mandatorily passed by the Parliament, in order to become a law. The fact that the presidential order in July 1954 that gave birth to Article 35A was passed unilaterally by circumventing parliamentary procedures, by the then President, Rajendra Prasad, on the mala fide advice of a clueless Nehru, has therefore always been ‘ultra vires’, to start with.

Again, does Article 370 have the power to add, amend, insert or delete a new article in the Constitution or amend the Constitution? The answer is again a categorical, ‘No’. Sub-clause 2 of Article 368 states that an amendment to the Constitution may be initiated only by the introduction of a bill for this purpose in either house of the Parliament, following which it has to be approved by no less than two-third majority of all members present and voting, of both the houses put together, following which it has to finally get the presidential assent, before the amendment eventually becomes legally valid.

Whichever way one looks at the Article 35A issue, that it was extra constitutional from its very inception, is now well established. We have lived with this 64-year-old mistake foisted upon us by a short-sighted Pandit Nehru, despite the fact that the J&K constituent assembly was disbanded on 26 January 1957, but it is time now to ensure that the mistake of 1954 is rectified, so that the true spirit of Article 19 and Article 21 of the Indian Constitution, which embody the right to freedom of speech and expression and right to life liberty, are upheld in the truest sense, without creating a stream of second class citizens within the state of Jammu and Kashmir, under the farcical garb of greater autonomy. Kashmir is, because India is, and not the other way round.

Sanju Verma is an economist and chief spokesperson for BJP Mumbai.