ARTICLE 35-A “A CONSTITUTIONAL HARAKIRI IN J&K”

17 Feb 2018 16:59:28

 

 

 

Ravindra Raizada (Sr. Advocate)

 

In the Constitution of India, the Article 370 is a constitutional web, always a fascinating subject for a student of constitutional law. Article 370 provides the mechanism to establish the system of governance in the State. Therefore, it would be interesting to closely examine the issue as to what is the constitutional scheme of Article 370.

 

The Regent of Jammu and Kashmir on 25.11.1949 accorded his acceptance to the finally approved Draft Constitution of India. The Constituent Assembly enforced Article 394 itself, Articles 5, 6, 7, 8, 9, 60, 366, 367, 379, 380, 388, 391, 392 and 393 w.e.f 26.11.1950 and enforced rest of the Articles including Article 370 w.e.f. 26.01.1950.

 

On commencement of Constitution of India, by virtue of its own language of Article 370, only Article 1 and 370 were made applicable in relation to the State of Jammu and Kashmir. The Article 1 (1) declares that “India, that is Bharat, shall be a Union of States” Article 1 is a solemn declaration of the People of India that the Union of States is an indestructible Union of States. Therefore, no state has any power to secede from the Union. The issue of accession of the States stands settled politically and constitutionally and no one can make any reference to any term of the Instrument of Accession, so as to buttress any claim of sovereignty in people of Jammu and Kashmir as a distinct entity.

 

The constitutionalism is the power of governance derived by “WE THE PEOPLE OF INDIA”, entrusted to the constituted authorities and is limited by the Constitution of India. Therefore, it would be appropriate to identify the constituted authorities created under Article 370 itself who have been charged with the responsibilities of setting up the system of governance in the State of Jammu and Kashmir. Article 370 as originally enacted reads as thus;

  

 

  1. (1) Notwithstanding anything in this Constitution,—

 

(a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;

 

(b) the power of Parliament to make laws for the said State shall be limited to—

 

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

 

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

 

Explanation.—For the purposes of this article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948;

 

(c) the provisions of article 1 and of this article shall apply in relation to that State;

 

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

 

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

 

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

 

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

 

 

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

 

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

 

At first stance, under Sub-Clause (a) of Clause (1) of Article 370, the Article 238 had been made inapplicable in relation to Jammu and Kashmir. Sub-Clause (a) is to be read with clause (2) of Article 370 so as to determine the scope of the work of state constitution making assigned to the State Constituent Assembly. The issue has arisen as to the width of the powers of the State Constituent Assembly to frame constitutional provisions which do not relate to part VI of the Constitution. However, due to paucity of space, the issue is not being discussed further.

Part VI of the Indian Constitution was not applicable at the first stance and rest of the provisions except Article 1 and 370, were to be applied by the President in exercise of powers under sub-clause (d) of the Clause (1) of Article 370.  

 

The issue at hand is whether the President while exercising powers under sub-clause (d) of the Clause (1) is under some limitation and if so the extent of those limitations. The situation has emerged after the Judgment of the Constitutional Bench of the Hon’ble Supreme Court in the cases of Kesavanand Bharti Vs State of Kerala (1973) 4 SCC 225, Smt. Indira Nehru Gandhi Vs Shri Raj Narain [1975] Sup SCC 1, Minerva Mills Ltd Vs Union of India [1980] 3 SCC 625 and R. C. Poudiyal Vs Union of India [1994] Supp. I SCC 324 on Basic Structure Theory.

 

If the President assents to an Amendment passed by two Houses, having the effect of effacement of the Basic Structure of the Constitution, the President who is under constitutional oath under Article 60 to preserve and uphold Constitution, cannot be said to be true to his oath to preserve, protect and defend the Constitution. In Kesavanand Bharti Vs State of Kerala (1973) 4 SCC 225, the Article 60 along with the other constitutional provisions constituting the scheme of the Constitution has been held to operate as implied limitation on the width of powers of the Parliament to amend the constitution and thus, the theory of Basic Structure as sacrosanct emerged. The President by virtue of his oath, while applying Constitutional Provision with or without modification or restrictions in relation to J & K is under constitutional obligation to observe and preserve the fundamental features of the Constitution of India. The powers of the President being subject to such limitations of basic structure, the earlier decision of the Hon’ble Supreme Court of India in the case of Puran Lakhanpal Vs. The President of India and Others AIR 1961 SC 1519 upholding no limitation upon the powers of the President appears to be no longer good in law. It is humbly submitted that Puran Lakhanpal (Supra) has also been simply followed by the Hon’ble Supreme Court in the case of Sampat Vs J. & K. State AIR 1970 SC 1118 and both the judgments are the Judgments rendered in the period prior to the Judgment of the Hon’ble Supreme Court in the case of Kesavanand Bharti (Supra) and other judgments referred above.

 

The constitutional scheme does not appear to allow the President to efface or modify any basic structure / fundamental feature. Thus the issue has arisen how the two provisos to sub-clause (d) of Clause (1) of the Article 370 providing the requirement of consultation or concurrence with the state government can be said to be applicable in such case and the powers of the President to apply basic structure appears to be residing in the sub-clause (d) of Clause (1) of the Article 370 without any further reference to two provisos. The issue is the nature of the powers of the President coupled with a constitutional duty to apply basic structure in relation to the State of Jammu and Kashmir.   

 

The Right of Equality and equal protection of law under Article 14, Right to opportunity of educational institute funded by the State under Article 14 and 15, Right of employment in the State Services and Public Sector Institutions under Article 16, Right to reside and settle in any part of India (right to shelter) under Article 19(1)(e) and right to life under Article 21 are the human rights conferred under a constitutional scheme, by the people of India upon themselves, for the proper development as a human being and such rights have been held to be part of Basic Structure of the Constitution.

          

The President in purported exercise of powers under sub-clause (d) of Clause (1) of the Article 370 issued “The Constitution Order (Application to Jammu and Kashmir) Order 1954” whereby Part III relating to fundamental rights has been applied; but clause (3) of Article 16, reference of clause (3) of Article 16 in Article 35 has been omitted and an Article 35-A has been added after Article 35 in Part III in relation to Jammu and Kashmir.

 

Under the well-nit constitutional scheme, clause (3) of Article 16 and sub-clause (i) of clause (a) of Article 35 cumulatively provide for absolute and unalterable legislative powers of the Parliament, as against the absolute constitutional prohibition against the state legislature, to make law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State, any requirement as to residence within that State prior to such employment or appointment. Article 35 starts with a Non-Obstante Clause and appears to be beyond the amending powers of the Parliament. The clause (3) of Article 16 was numbered and debated as clause (2a) after the clause (2) of Article 10 of the Draft Constitution. Shri Alladi Krishnaswami Ayyar while moving the insertion of clause (2a) of Article 10 observed as below;

 

The object of the amendment is clear from the terms and the wording of it. In the first part of the article, the general rule is laid down that there shall be equal opportunity for all citizens in matters of employment under the State and thereby the universality of Indian citizenship is postulated. In paragraph 2 of article 10, it is expressed in the negative, namely that no citizen shall be ineligible for any office under the State by reason of race, caste, sex, descent, place of birth and so on. The next two clauses are in the nature of exceptions to the fundamental and the general rule that is laid down in the first part of the article. Now what the present amendment provides for is this that in case of appointments under the State for particular reasons, it may be necessary to provide that residence within the State is a necessary qualification for appointment by and within the State. That is the object of this amendment and instead of leaving it to individual states to make any rule they like in regard to residence, it was felt that it would be much better if the Parliament has lays down a general rule applicable to all states alike, especially having regard to the fact that in any matter concerning fundamental rights, it must be the Parliament alone that has the power to legislate and not the different Units in India. Under these circumstances I propose this amendment for the consideration of the House.

 

Dr. Ambedkar during the debate on the draft clause at hand, intervened and observed as below;

 

I did not quite follow. I shall explain the purpose of this amendment. (It is the feeling of many persons in this House that, since We have established a common citizenship throughout India, irrespective of the local jurisdiction of the provinces and the Indian States, it is only a concomitant thing that residence should not be required for holding a particular post in a particular State because, in so far as you make residence a qualification, you are really subtracting from the value of a common citizenship which we have established by this Constitution or which we propose to establish by this Constitution. Therefore in my judgment, the argument that residence should not be a qualification to hold appointments under the State is a perfectly valid and a perfectly sound argument. At the same time, it must be realized that you cannot allow people who are flying from one province to another, from one State to another, as mere birds of passage without any roots, without any connection with that particular province, just to come, apply for posts and, so to say, take the plums and walk away. Therefore, some limitation is necessary. It was found, when this matter was investigated, that already today in very many provinces rules have been framed by the provincial governments prescribing a certain period of residence as a qualification for a post in that particular province. Therefore the proposal in the amendment that, although as a general rule residence should not be a qualification, yet some exception might be made, is not quite out of the ordinary. We are merely following the practice which has been already established in the various provinces. However, what we found was that while different provinces were laying down a certain period as a qualifying period for posts, the periods varied considerably. Some provinces said that a person must be actually domiciled. What that means, one does not know. Others have fixed ten years, some seven years and so on. It was therefore felt that, while it might be desirable to fix a period as a qualifying test, that qualifying test should be uniform throughout India. Consequently, if that object is to be achieved, viz that the qualifying residential period should be uniform, that object can be achieved only by giving the power to Parliament and not giving it to the local units, whether province or States. That is the underlying purpose of this amendment putting down residence as a qualification.       

 

Thus the debates demonstrate that ‘clause (3) of Article 16’ and ‘reference of clause (3) of Article 16 in Article 35’ are inserted in pursuance of a well thought out constitutional scheme of the fundamental rights which denudes the states from exercising any legislative powers to prescribe residence as requirement for employment in State services.

 

The President by means of Constitution Order 1954 effaced the ‘clause (3) of Article 16’ and ‘reference of clause (3) of Article 16 in Article 35’ in relation to Jammu and Kashmir and inserted Article 35-A in Part III in order to transfer such powers to the State Legislature. Article 35-A reads as thus;

 

"35A. 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.".

  

Prior to the issue of “Constitution Order 1954”, the term “Permanent Resident” had not figured anywhere  in any of the “Constitution Order” nor in any Constitutional provision in J & K. Clause (a) of Article 35A confers powers on the State legislature to define “Permanent Resident”. The issue has arisen as to whether the President can introduce a clause viz. clause (a) of Article 35-A conferring powers upon the State Legislature to define a class of persons as “Permanent Residents” without any reasons or object of classification.

 

By virtue of Clause (a) of Article 35-A, the State Constituent Assembly enacted Section 6 defining “Permanent Resident” as the class of persons who had settled in the State as “State Subjects” in the period prior to May 1944 and their heirs only shall continue to be treated permanent resident irrespective of the fact that they actually reside in state of J & K or not.  The status of “Permanent Residents” in the state of J & K appears to be a status by heredity now. The issue has arisen as to whether the citizens who are not termed as “permanent resident” can claim to be factually “permanent resident” of J & K.

 

Section 6 of the Constitution of J & K has been referred to in relevant legislations, rules and regulations to exclude the other citizens the right to seek admission in the State funded Medical Colleges and State Funded Engineering Colleges and Polytechnics, right to acquire and hold even a limited immovable property to built a home for his shelter under Article 19(1)(e) read with 19(1) (f), right to be considered for employment in the State Services or State Instrumentalities guaranteed under Article 14 and 16, and right to purchase and acquire  limited property to start a small business even. So, the issue to be pondered is,

“whether a life of a human without such human rights is a life at all or not?”  

 

 

 

 

 

 

 

(Sh. Ravindra Raizada is a senior advocate currently practicing in Supreme Court of India. He is also a constitutional expert specifically on issues of Jammu & Kashmir)

 

 

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