‘Centre must protect the Constitution’

Print edition : September 15, 2017

The issue Article 35A, always an emotive one, has united the opposition. Here, a scene in the Assembly in October 2015 when legislators of the National Conference and the Congress demanded a discussion on the subject. Photo: Nissar Ahmad

ZAFFAR AHMAD SHAH, constitutional expert and legal luminary from Jammu and Kashmir, discusses what Article 35A is, the ramifications that its abrogation would have on the State, and the role that the State government and the Government of India need to play in this context. Excerpts:

What is Article 35A?

Article 35A is the provision of the Constitution that safeguards several rights available to the permanent residents of Jammu Kashmir. It is different from the Indian law which defines the citizenship of India. It protects the rights and privileges of the permanent residents of Jammu Kashmir in acquisition of property, in employment and in scholarships.

A law, which in a sense is applicable to a particular section of society—like it is applicable to the permanent residents of Jammu Kashmir but is not applicable to Indian citizens—can be questioned in court.

In order to protect such laws, if the Constitution itself makes a provision saying that laws which give some advantage, privilege or rights to a group of people will not be challenged or cannot be challenged, then such group of people for whom the law is meant would continue to enjoy the protection of law.

What do privileges under Article 35A mean in practical terms?

Under the Constitution of India, the people of India have the right to buy or acquire property anywhere in India. When we say that people of India cannot buy any property in Jammu Kashmir, we are violating the rights of the people of India. But Article 35A says that even if the laws of the citizens of India are violated, the permanent residents, or people of Jammu Kashmir, will have this privilege.

When an advertisement for government jobs is out, it is restricted to the permanent residents of the State. If Article 35A is not there, then any person from India can apply for the job.

The scholarships granted by the State government are available only to the permanent residents of the State and not other citizens of India.

As a consequence of the protection of these rights, various laws have been passed which prohibit acquisition of property by non-permanent residents and restrict employment in the State only to permanent residents and, more importantly, the law protects the right of permanent residency.

Another political protection is in contesting Assembly seats: only permanent residents of Jammu Kashmir can contest.

What ramifications will abrogation of Article 35A have?

A group of people who call their organisation “We the Citizens” want the law declared invalid in the Supreme Court. And if it happens, it will have very serious and disastrous implications for our people. They will lose the concept of permanent residency; our land, our jobs and our scholarships will become open to every person.

People of the State should continue to have these rights. This is a guarantee to them, an outcome of something that happened 60 years back. Suddenly a group of people come and question it. We read mischief into it. An attempt is made to dilute and do away with the special status. This will pave the way for the abrogation of Article 370, against which writs have already been filed.

Our position and identity—culturally, morally, ethically, politically, economically—will become vulnerable. We won’t be able to save and define ourselves as a distinct and separate nation.

How do you see the Hurriyat leaders who say that they have nothing to do with the Indian Constitution and that their fight is not for any special status but complete independence from the Indian state?

This also has basis in the Constitution and the law. On August 14 and 15, 1947, as the British Paramountcy lapsed, all States except Jammu Kashmir, Junagarh and Hyderabad merged with India. As far as Jammu Kashmir is concerned, it has a special case, different from Hyderabad and Junagarh. What would be the position of Jammu Kashmir between August 15, 1947, and October 26, 1947? It was an independent state. It had its own sovereignty.

When on October 26, 1947, the Maharaja endorsed the Instrument of Accession, he transferred the powers of Defence, Communication and Foreign Affairs to the Union of India. So he empowered the Parliament of India to make laws relating to Defence, Communication and Foreign Affairs. But then on other subjects like taxes, punishing people for offences and thousands of other laws are also needed. So he retained the rest of the powers with himself.

The Governor General responded to it and explained that since the ruler of the state belonged to a community different from that of the majority of the people, this law be put to the ratification of the people.

Now this ratification by the people of the Instrument of Accession has not taken place. India took the matter to the United Nations, and the Security Council passed the resolution asking for a plebiscite in Jammu Kashmir, which did not take place.

So the stand of the Hurriyat, on the one hand, appears to be different, but on the other hand there is a common theme. The issue relating to constitutional autonomy is equally important and not inconsistent with the larger issue. Whatever autonomy the State has under the existing constitutional arrangements, people want these protections to continue to remain in operation until the larger issue is decided. Ultimately, these protections will be available to identify who the permanent residents are, but if non-permanent residents come to the State, there will be a mixture of the two and it will be difficult to know who the real permanent residents are.

Is this issue also important for the mainstream political parties of Jammu and Kashmir?

It is not an issue only for the Hurriyat. It is important for all political parties. Permanent residents will be all leaders of political parties, including the BJP [Bharatiya Janata Party], and the people of Jammu and Ladakh, who want Article 35A scrapped. If this article gets invalidated, then any person can go and buy land in Ladakh and Jammu. This issue is essentially political in nature. Should these issues be taken to court?

How do you see the State government’s role? If there was an agreement between the People’s Democratic Party [PDP] and the BJP, how did the issue land up in court? And is the PDP doing enough to protect Article 35A?

The BJP as a political party has made its mind clear that it wants Article 370 to go and that it wants the status of the State reduced to that of other States. Being coalition partners [with the PDP], it agreed to the status quo position of the State. Now a writ petition has been filed against Article 35A and it is believed that it has been done at the behest of the BJP. And with the Union of India not filing an affidavit, the PDP is virtually left alone in protecting Article 35A. This is a paradox for the PDP. On the one hand it is in a coalition with the BJP and on the other hand, it is fighting the case without the help of the BJP. The PDP has of late engaged a good lawyer, Fali Nariman, to defend the case. What the PDP needs to consider is why it should be in coalition with a political party that does not support it in the Supreme Court. The situation has been made so uncertain that it has threatened the very existence of the PDP. The BJP has outsmarted the PDP to facilitate the implementation of its own agendas and it is claiming publicly that it does not want Article 370. Was the PDP the facilitator of the BJP or was it so naive?

What can the Centre do to avoid any political upheaval in Jammu and Kashmir?

The first thing that the Government of India can do is to instruct its Attorney General to file an affidavit in the Supreme Court and make its stand known and request the court to dismiss the petition against Article 35A.

But would that not amount to an acceptance on the BJP’s part that it failed to have Article 370 abrogated?

As a government, you have one stand and as a political party, you have another stand. Before the Supreme Court, it is the government which is the party.

Earlier too, governments have defended [against] challenges to the Constitution. The government cannot refuse to support the constitutional position. It is under a constitutional obligation to maintain a constitutional position. The relation between the State government and the Government of India is ingrained in the Constitution. Who will defend it if not the government?

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