Revisiting Article 35A, key to Kashmir’s special status and the subject of a raging debate

A batch of petitions before the Supreme Court challenging the constitutional validity of Article 35A of the Constitution – which gives the Jammu and Kashmir Assembly legal sanction to provide special privileges to “permanent residents” – has once again become a political flash point and re-opened the debate in relation to the special status enjoyed by the state by virtue of Article 370 of the Constitution.

The petitions were to be taken up by the Supreme Court on Monday but the court adjourned their hearing by three months.

To appreciate the intent of the constitutional provisions vis-a-vis Jammu and Kashmir, it is important to contextualise the analysis of the law with the constitutional history of the state, especially in relation to the special status enjoyed by it in the Union of India.

Permanence of special autonomy

On August 15, 1947, when India and Pakistan became independent states, the kingdom of Jammu and Kashmir did not cede to either dominion. Instead, its maharaja proposed a “Standstill Agreement” with both countries. In 1946, when Mohammed Ali Jinnah requested Muslims of Jammu and Kashmir to become a part of Pakistan, the Muslim masses rejected this argument and shouted “Go back Jinnah”, as recorded in Justice Adarsh Sein Anand’s seminal work The Constitution of Jammu and Kashmir, published in 1994. Pakistan entered into a Standstill Agreement with Jammu and Kashmir, but India did not. It wanted to hold further negotiations. And on October 26, 1947, Maharaja Hari Singh signed the Instrument of Accession whereby Jammu and Kashmir agreed to accede to the Union of India.

The first India-Pakistan war over the accession of Jammu and Kashmir led to a delay in the integration of the state with the Union. Since the Constitution of India was being drafted during the tussle over Kashmir, it was felt that a transitional provision had to be included in it regarding the relationship between India and the state. This was to be an interim arrangement till the Constituent Assembly of Jammu and Kashmir had been elected to determine the status of the relationship with India. This took shape in the form of Article 370, which bestowed “special status” on Jammu and Kashmir. The special status arose out of the peculiar manner in which the state had acceded to India and not because of the demographic component of its people, as often misrepresented by various sections. Sheikh Abdullah, the unmatched leader of the Kashmiri masses, also sought a special status in light of these circumstances. Prime Minister Jawaharlal Nehru and his deputy, Sardar Patel, held various meetings on this matter in 1949. In Nehru’s letter to Sheikh Abdullah on May 18, 1949, he stated that Sardar Patel and he had agreed that except for subjects conceded to the Union in the Instrument of Accession, it was for the state Constituent Assembly to determine the status of the other subjects. In 1950, the Constitution of India came into effect and in it, Article 370 was the guiding light for the relationship with Jammu and Kashmir.

Article 370(1)(b)(ii) and Article 370(1)(d) of the Constitution state that the concurrence of the state government is needed when making decisions under the Union List (comprising items on which the Centre has exclusive power to legislate) and the Concurrent List (made up of items on which both the Centre and states have jurisdiction) apart from the subjects under the Instrument of Accession. Such concurrence is also needed for the extension of Articles of the Constitution of India to the state of Jammu and Kashmir. The power of extending laws to the state of Jammu and Kashmir was to be exercised through orders issued by the president of India. Article 370(2) states that when the Constituent Assembly is convened, the concurrence given by the state government shall be placed before it and it can make decisions regarding the same. This indicates that this was an interim measure to determine legislative and executive relations with the state till the Constituent Assembly had been formed. Article 370(3) states that the president can declare Article 370 to be inoperative, but only with the recommendation of the Constituent Assembly. The Supreme Court in Prem Nath Kaul versus State of Jammu and Kashmir had clarified that the framers of the Constitution wanted the Constituent Assembly to finally determine the relationship between India and the state.

In 1951, the Constituent Assembly was constituted based on an election that was swept by Sheikh Abdullah’s National Conference. In 1952, Nehru and Sheikh Abdullah entered into the Delhi Agreement whereby it was agreed that Jammu and Kashmir would have full power over subjects other than those acceded under the Instrument of Accession. On February 6, 1954, the Constituent Assembly ratified the accession to India and reiterated its special relationship with the Union of India.

The Constitution of Jammu and Kashmir came into force in 1957, with Article 147(c) stating that no amendment can be made to the Constitution in relation to the provisions of the Constitution of India as applicable to the state; this would, for all purposes, include the relationship enshrined under Article 370. It is important to note that Article 370 cannot be made inoperative without the consent of the Constituent Assembly, but the tampering of the special relationship between India and Jammu and Kashmir as enshrined in the Article is specifically barred by this provision of the Constitution of Jammu and Kashmir, thereby bringing permanency to the state’s special status.

Article 35A

Article 35A of the Constitution of India enables Jammu and Kashmir to make a distinction between permanent and non-permanent residents in relation to acquisition of immovable property, settlement in the state and employment, among others. The historical background to the need to make a distinction between permanent and non-permanent residents can be traced back to an agitation by Kashmiri Pandits against the hiring of Punjabis in the state administration, which eventually led to a 1927 law promulgated by Maharaja Hari Singh that sought to provide certain privileges to permanent residents, especially in the purchase of land. Because of the special circumstances surrounding the accession to India and the guarantee of special status, representatives of Jammu and Kashmir felt the law regarding permanent residents needed to continue to preserve their special rights vis-a-vis the rest of the Union of India.

Article 35A was a product of the Delhi Agreement. It enables the state legislature to define “permanent residents” and provide them with special privileges. It also protects such laws from being held as void on the ground that they are inconsistent with or restrict or abridge any rights conferred on the other citizens of India by any provision of Part III of the Constitution.

While discussing the contours of the Delhi Agreement in the Lok Sabha, Nehru stated:

“The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time, past, in the maharaja’s time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I mention it, in the old days the maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So, although most of their rights were taken away from the maharaja under the British rule, the maharaja stuck to this that nobody from outside should acquire land there. And that continues. So, the present government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Now they want to vary the old maharaja’s laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. However, we agree that this should be cleared up. The old state’s subjects definition gave certain privileges regarding this acquisition of land, the services, and other minor things, I think, state scholarships and the rest.

“So, we agreed and noted this down: ‘The state legislature shall have power to define and regulate the rights and privileges of the permanent residents of the state, more especially in regard to the acquisition of immovable property, appointments to services and like matters. Till then the existing state law should apply.’”

The text of Article 35A reads as follows:

“Saving of laws with respect to permanent residents and their rights. – Notwithstanding anything contained in this Constitution, no existing law in force in the state of Jammu and Kashmir, and no law hereafter enacted by the legislature of the state.
(a) defining the classes of persons who are, or shall be, permanent residents of the state of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects –
(i) employment under the state government;
(ii) acquisition of immovable property in the state;
(iii) settlement in the state; or
(iv) right to scholarships and such other forms of aid as the state government may provide,
shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.”

Challenges to Article 35A

Article 35A was inserted via the Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the president under Article 370(1)(d), and not through a constitutional amendment under Article 368 of the Constitution of India. The petitions currently before the Supreme Court argue that the insertion of a constitutional article by an order of the president is void as it was not based on the procedure for amendment to the Constitution.

The power of the president to modify Articles of the Constitution under Article 370(1)(d) in relation to their application to Jammu and Kashmir was discussed by the Supreme Court in Puranlal Lakhanpal versus The President of India. The petitioner challenged the Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the president under Article 370(1)(d) through which Article 81(1) of the Constitution of India was modified in relation to Jammu and Kashmir, whereby direct elections from parliamentary constituencies in the state were substituted with an indirect election process (presidential appointments). The petitioner argued that the power of the president to modify constitutional provisions in relation to their application in the state did not include the power to amend the Constitution, nor the power to make radical alterations to the Constitution.

The constitutional bench of the Supreme Court rejected this contention by reasoning that since the object of Article 370 is to provide special status to Jammu and Kashmir, the powers of the president under the relevant Article should be interpreted in the “widest possible amplitude”. It, therefore, dismissed the petition and held, “We are therefore of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word ‘modification’ used in Art. 370(1) and in that sense, it includes an amendment. There is no reason to limit the word modifications as used in Art. 370(1) only to such modifications as do not make any ‘radical transformation’.”

Similarly, in State Bank of India versus Santosh Gupta the Supreme Court reiterated that “the word modification must be given the widest meaning and would include all amendments which either limit or restrict or extend or enlarge the provisions of the Constitution of India”.

While one may argue that the power to amend under Article 370(1)(d) includes the power to insert a provision in the Constitution, this is a matter of contention that needs to be settled by the Supreme Court’s constitutional bench.

Gender discrimination angle

Supreme Court advocate Charu Wali Khanna has filed a petition before the top court claiming that Article 35A is in violation of her fundamental rights under Article 14, as it provides protection to laws based on gender discrimination. Article 35A enables the Jammu and Kashmir legislature to determine the definition and privileges of permanent residents. Article 6 of the Constitution of Jammu and Kashmir states that a permanent resident is a citizen of India who is a “state subject of Class I or of Class II” or someone who has lawfully acquired immovable property and has ordinarily been a resident of the state for 10 years prior to May 14, 1954. The definition of “state subject of Class I or Class II” under Article 6 is the same as the meaning provided in State Notification Number 1-L/84 dated April 20, 1927, read with State Notification Number 13/L dated June 27, 1932, as per Article 6(3).

The point of contention is Note III of the Notification dated April 20, 1927, which states:

“The wife or a widow of the state subject of any Class shall acquire the status of her husband as state subject of the same Class as her husband, so long as she resides in the state and does not leave the state for permanent residence outside the state.”

It has been contended that this definition deprives the permanent residential rights of a woman who is a permanent resident when she marries a non-permanent resident and, thereby, the child of such a wedlock would not be entitled to the rights of a permanent resident. The Jammu and Kashmir High Court in State of Jammu and Kashmir versus Dr Susheela Sawhney clarified this matter by reasoning that Note III uses the term acquires, which implies that this Note is in relation to non-permanent residents who acquire permanent resident status after marrying a man who enjoys the same, and this cannot be interpreted to mean that a woman who enjoys permanent resident status will lose that status if she marries a non-permanent resident, or that a child born of such a marriage will be denied the rights of a permanent resident.

Nevertheless, if a married woman who enjoys permanent residence leaves the state to permanently reside in another, she will lose the rights of a permanent resident, even though the Note does not provide for similar deprivation in case of a man. The High Court in the Susheela Sawhney case referred to this aspect by stating, “So far as an unmarried woman is concerned, she is as free as a male. She can leave the state in the same manner as a male can do. But the question arises, would she suffer from disqualification continued in Note III if she leaves the state for permanent residence outside the state? A male does not so lose.” It may be argued that such a discriminatory application of the law based on gender is in violation of the fundamental right to equality enshrined under Articles 14 and 15 of the Constitution of India.

However, a challenge to the operation of the notification to the extent of gender-based discrimination does not require the invalidation of Article 35A. In State Bank of India versus Santosh Gupta, the Supreme Court held that the Constitution of Jammu and Kashmir does not use the phrase sovereign and, therefore, it has no sovereignty outside the Constitution of India and, hence, it is subordinate to the Constitution of India. The people of Jammu and Kashmir are first and foremost citizens of India, as is evident from Section 6 of the Constitution of Jammu and Kashmir, which refers to “permanent residents” as citizens of India. Section 10 of the state’s Constitution guarantees to all permanent residents the same rights as provided under the Constitution of India, and therefore an infringement of the right to equality on the basis of gender cannot be precluded by Article 35A. The text of Article 35A is clear in stating that the laws on permanent residents cannot be challenged on the grounds of being inconsistent with the “rights conferred on the other citizens of India”. Therefore, while a non-resident of Jammu and Kashmir cannot claim to have the same rights as a resident under Article 35A, owing to the special status flowing from Article 370, neither the intent nor the text of the Article precludes a challenge of a state law governing permanent residents on the grounds of disadvantaged treatment based on gender. This line of reasoning finds strength in the judgement of the Jammu and Kashmir High Court in the case of Susheela Sawhney where it held:

“Section 10 of the state Constitution lays down that permanent resident[s] have all the rights guaranteed to them under the Constitution of India, and if there is some discrimination inter-se between the citizens of India who are permanent residents of the state, then in the event of a case being made out for discrimination, that provision can be struck down as violative of equality clause. The immunity which has been provided is limited. The immunity is that law is not to be declared as ultra-vires because different treatment is being given to citizens of India who are not the state subjects or permanent residents and the citizens of India who are permanent residents of the state.”

Seeking complete abrogation of Article 35A without making such a distinction can have a disastrous effect on the already strained relationship between Jammu and Kashmir and the Central government, and must be avoided to maintain the special status bestowed on the state through Article 370 as a result of the peculiar circumstances in which it acceded to India. The Supreme Court should strive to maintain a balance between the special status as constitutionally guaranteed to the people of Jammu and Kashmir and at the same time uphold the fundamental rights of the people.

Arvind Kurian Abraham is a lawyer based in Delhi and former director of the Constitutional Law Society of the West Bengal National University of Juridical Sciences, Kolkata.

This article first appeared on The Invisible Lawyer.