“Section 6 of the Constitution of J&K: A Racial Manifestation of the Article 35A”

29 Mar 2018 14:50:12

Ravinder Raizada

“Article 35A” of Part III of the Constitution of India, which is applicable in relation to the state of J&K,  has generated a debate on the width and limits of the powers of the President of India and limitation on such powers under Article 370 of the Constitution. Equality of races of mankind is the corner stone of the Constitution of India. The issue is as to whether the width of the powers of the State legislature is such that “a vote for ancestry” has been unconstitutionally legitimized by way of classification of “a race” as permanent resident under Section 6 of the Constitution of J&K. The President of India in purported exercise of powers under sub-clause (d) of Clause (1) of the Article 370 has issued ‘The Constitution Order (Application to Jammu and Kashmir) Order 1954’ (“CO 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. The present article is confined to the effect of clause (a) of article 35-A on Article 14 and 15 with reference to the principles in-built in Articles 325 and 326 of the Constitution of India while granting political right to vote to the Citizens. Article 35A 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 here- after 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.”


The word ‘or’ in between clause (a) and clause (b) of article 35A is of far reaching import. Whereas the clause (a) read with clause (b) of article 35A provides for the powers of the state legislature to define permanent residents and confer upon them the benefits in the fields prescribed under sub-clause (i), (ii), (iii) and (iv) of clause (b) of the article 35A, the clause (a) of the article 35A empowers the state legislature to define permanent residents and extend the benefits of such class to the fields other than those prescribed under sub-clause (i), (ii), (iii) and (iv) of clause (b) of the article 35A.  Therefore, the clause (a) of the article 35A has the width of creating a class and conferring on such class, political rights also. In the present Article, power of the President to amend the Constitution of India, so as to efface the basic feature of the Constitution in relation to J&K is not being debated for the reasons of paucity of space.          


Under article 14 of the Constitution of India, the whole doctrine of classification is based on the distinction to be drawn between "discrimination without reason" and "discrimination with reason and on the well-known fact that the circumstances which govern one set of persons or objects, may not necessarily be the same as those governing another set of persons or objects, so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of circumstances. By virtue of the core value of Article 14, the article 14 is basic structures of the constitution of India. However the article 35A empowers the state legislature of J&K to further define ‘permanent residents”, without any object of such classification and on causal connection with the object of legislation. Thus, clause (a) of article 35-A providing immunity to such classification without reasons, renders Article 14 bereft of its core value and the basic structure stands violated by the amendment in Constitution by way of addition of clause (a) of article 35-A.      


Under sub-clause (a) of Clause (1) of Article 370, Part VI of the Constitution of India was not made applicable. Under sub-clause (c) of Clause (1) of Article 370, Article 1 and 370 have been made applicable and rest of the provisions of Constitution of India, were to be applied by the President in exercise of powers under sub-clause (d) of the Clause (1) of Article 370.


Part VI provides legislative and executive structure and procedure of State, structural hierarchy of Judiciary under High Court and composition of High Court in a State. If, the State Constituent Assembly instead of adopting Part VI, was vested with the constituted authority under Article 370, to frame its own constitution, 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 here particularly Part XV.


In the case of State Bank of India Vs Santosh  Gupta and Anr. Etc (2017) 2 SCC 538, the Supreme Court has held that “The State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India. It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and distinct class in themselves.”


As Article 370 is structured in the constitution, the field being occupied by Sub-Clause (d) of clause (1) of Article 370 could not be and can’t be occupied by the State Constituent Assembly or by State Legislature. Therefore, firstly the President is to exercise powers by omitting the constitutional provision or matters contained therein and to grant latitude to the State Constituent Assembly to enact a provision on such subject matter. Under Article 60, the President who is under constitutional oath to preserve, protect and defend Constitution. Therefore, the powers to omit or restrict a provision shall always be subject to basic structure because the President can’t be said to be true to his constitution oath, if the President assents an amendment in the Constitution, having the effect of effacement of the Basic Structure of the Constitution. [See His Holiness Keshwanand Bharti Vs State of Kerala and others (1973) 4 SCC 225 (Para 654)]. It is submitted that the Basic Structure Doctrine operates against every constitutional body which is empowered to enact amendment in the constitution and enforce the same.   


In the case of Kesavananda Bharti and others Vs State of Kerala and others 1973(4)SCC 1, Chief Justice, S.M. Sikri observed, “Adult suffrage, the acceptance of the fullest implications of democracy” is one of the most striking features of the Constitution.”


In Part XV, under Article 325, no person shall be ineligible for inclusion in any electoral roll for election to state legislature or claim to be included in any special electoral roll for any such constituency of state legislature on grounds only of religion, race, caste, sex or any of them. Article 326 of the Constitution of India provides the election to the legislative assembly of a state on the basis of ‘adult suffrage” i.e. every person who is a Citizen of India shall be entitled to caste his vote. Under Article 326, the disqualification on the ground of non-residence can be prescribed by the State Legislature; however the word ‘non-residence’ does not empower the competent legislature to classify “the resident’ so as to disable the citizen to prove his residence to claim for inclusion of his name in the electoral roll.


By the Constitution Order (Application to Jammu and Kashmir) Order 1950 issued on 26.01.1950, the President effaced Article 326 and 327 in relation to J&K. In supersession of the Constitution Order (Application to Jammu and Kashmir) Order 1950, the President issued the CO 1954 whereby the President again effaced Article 326 and 327 in relation to J&K.  Thus, even for the election to the seats allocated to J&K in Lok Sabha, the constitutional provision of adult suffrage was not made applicable. For the first time in 1966, by means of the Constitution Order (Application to Jammu and Kashmir) Order 1966, the President applied Article 325 and 326; but stipulated that the reference to a State shall not be construed as not including a reference to the State of Jammu and Kashmir. Thus, in nutshell Article 325 and 326 have not been applied in relation to the election to the state legislature of J&K.Although vires of the CO 1954 is questionable that the President has no powers to efface Article 326 and 327 in relation to J&K and delegate the powers to frame a constitutional provision providing “Right to Vote to the election of the State Legislature”, this article makes debatable assumptions that the President had such powers of delegation. Article 370 refers to three constituted authorities namely President, State Constituent Assembly and the State Government. It is humbly submitted that all the constitutional authorities whether it is State Constituent Assembly of J&K or State Legislature of State of J&K or President of India, all or anyone one of them while applying any Constitutional Provision in relation to J&K are under constitutional obligation to observe and preserve the Fundamental Features of the Constitution of India and the doctrine of basic structure shall apply at every stage of decision making by President while applying any constitutional provision.


Here, an observation of the Constitutional Court of South Africa  in Re “Certification of the Constitution of the Province of KWAZULU NATAL 1996” in respect to Section 160 of the Constitution of the Republic of South Africa, Act 200 of 1993 (the “interim Constitution”) is relevant to be cited and is extracted below;


“On a proper interpretation of section 160, while a provincial constitution may not be inconsistent with any provision of the interim Constitution, in terms of the proviso to subsection (3), the legislative and executive structures and procedures may differ from those provided for in the interim Constitution. We would emphasise however, that whatever meaning is ascribed to “structures and procedures” they do not relate to the fundamental nature and substance of the democratic state created by the interim Constitution nor to the substance of the legislative or executive powers of the national Parliament or Government or those of the provinces.


The provisions of section 160 which confer constitution making powers upon a province are not to be viewed in isolation, but rather to be interpreted within the context of the other provisions of the interim Constitution relating to provincial powers. Section 160(3) is negatively formulated and, read with section 160(4), indicates in peremptory terms what provisions a provincial constitution may not contain. They are, subject to the proviso, provisions which are “inconsistent with a provision of this Constitution, including the Constitutional Principles set out in Schedule 4”. It is clear, therefore, that in determining what provisions relating, for example, to legislative and executive powers may or may not be embodied in a provincial constitution, regard must be had to all provisions in the interim Constitution and Constitutional Principles.”


“From all the foregoing it is evident, beyond any doubt, that in order to determine whether a provision in a provincial constitution dealing with, for example, provincial legislative power, can be certified, such provision must be compared with all the above provisions (and indeed any other provision in the interim Constitution relating to legislative power) and a determination with regard to inconsistency made. More simply stated, a province cannot by means of the bootstraps of its own constitution confer on its legislature greater powers than those granted it by the interim Constitution. The same principle must apply, mutatis mutandis, to all other powers, of whatever nature, asserted by a province in the provisions of its constitution. Certification requires a two step approach in regard to such provisions. The first is an enquiry as to whether the interim Constitution or a Constitutional Principle deals, expressly or impliedly, with the power in question and how it deals with it. The second is the determination whether the provision in a provincial constitution is inconsistent with such comparable provision or any other relevant provisions in the interim Constitution or Constitutional Principles.”


Section 6 of the State Constitution defining permanent residents, is purported to be enacted on the basis of clause (a) of the article 35A. Therefore, if the width of the clause (a) of article 35A is such that a classification based upon race is permissible, such classification shall infringe the core value of Article 14, 15(1) and Article 325 which prohibits classification on race. A federally recognized Race or Group as “Scheduled Tribes” figuring in Schedule V and VI are constitutionally recognized exception, to classification based upon race and class of “state subjects and their descendants” as a group for exclusive voting rights for election to state legislature can’t be claimed as a class having any striking similarities with “Scheduled Tribes”. 


Prior to the issue of the CO 1954 on 14.05.1954, there was no term such as “Permanent Resident” existing in any of the State Statutes enforced in J&K. The term ‘state subject’ (Mulki) had been in vogue, which was used to be referred to a citizens of a particular country under monarchy. In J&K, during the reins of His Highness the Maharaja Bahadur, the Ruler took the first statutory measure to define 'hereditary State Subject'  and by the order of the Maharaja Hari Singh issued under his Private Secretary's Circular order No. ps-2354 dated January 31, 1927, the expression 'hereditary State Subject' was defined as under :


"For the purpose of this order the term 'hereditary State Subject' will be held to mean and include all persons born and residing with in the State before the commencement of the reign of His Highness the late Maharaja Gulab Singh Sahib Bahadur and also persons who settled therein before the commencement of Samvat 1942 and have since been permanently residing therein."


The Ruler vide Notification No. IL/84 dated 20.04.1927 broadened the “State Subjects” by adding 3 more classes of State Subjects. As per the Notification No. IL/84 dated 20.04.1927, the term ‘State Subject’ means and includes—


Class I.--All persons born and residing within the State before the commencement of the reign of His Highness the late Maharaja Ghulab Singh Sahib Bahadur, and also persons who settled therein before the commencement of Samvat year 1942, and have since been permanently residing therein.


Class II.--All persons other than those be- longing to Class I who settled within the State before the close of Samvat year 1968, and have since permanently resided and acquired immovable property therein.


Class III--All persons, other than those belonging to Classes I and II permanently residing within the State, who have acquired under a rayatnama any immovable property therein or who may hereafter acquire such property under an ijazatnama and may execute a rayatnama after ten years continuous residence therein.


Class IV.--Companies which have been registered as such within the State and which, being companies in which the Government are financially interested or as to the economic benefit to the State or to the financial stability of which the Government are satisfied, have by a special order of His Highness been declared to be State Subjects.


Note 1 --In matters of grants of the State scholarships, State lands for agricultural and house building purposes and recruitment to State service, State Subjects of Class I should receive preference over other classes and those of Class II, over Class III, subject, however, to the Order dated 31st January, 1927 of His Highness the Maharaja Bahadur regarding employment of hereditary State subjects in Government service.


Note II.--The descendants of the persons who have secured the status of any class of the State Subjects will be entitled to become the State Subjects of the same class. For example, if A is declared a State Subject of Class II his sons and grandsons will ipso facto acquire the status of the same class (II) and not of Class I.


Note III.--The wife or a widow of a 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.


Note IV.--For the purposes of the interpretation of the term 'State Subject' either with reference to any law for the time being in force or otherwise, the definition given in this Notification as amended up to date shall be read as if such amended definition existed in this Notification as originally issued."


The Ruler issues another Notification No. 13-L/1989 dated 27.06.1932 whereby it was provided that the status of class III state subject could have been achieved by a foreign national on purchasing immovable property under permission of an ‘ijazatnama’ after ten years’ continuous residence in J&K State as laid down in Notification No. 1-L of 1984 dated 20th April, 1927.


A bare perusal of the Circular  order No. ps-2354 dated January 31, 1927 followed by Notification No. IL/84 dated 20.04.1927 reveals that “'hereditary State Subject' as defined in Circular dated 31.01.1927 are termed as State Subjects of category Class I in Notification dated 20.04.1927. Therefore, all persons born and residing within the State before the commencement of the reign of His Highness the late Maharaja Ghulab Singh Sahib Bahadur i.e. on 16.03.1846, and also persons who settled therein before the commencement of Samvat year 1942 (AD 1886), and have since been permanently residing therein ate termed as State Subjects of Class I. Class II and Class III identified the persons having settled in the state and purchased property before 1911 A.D. The State Subjects of category Class III refers to those persons who had already purchased property under a rayatnama and residing in the State. Note II of Circular dated 20.04.1927 confer status of state subjects on the descendants of the state subjects.  


However, any person could have become State Subjects of Class III and right to acquire and hold property was to be sanctioned by Ijazatnama and after 10 years of residing with such possessory rights, the rayatnama was to be executed by such resident. Therefore, it is clear that the right to acquire title of property was not prohibited and only prior permission of the political executive of the state government was needed.


On 6.4.1955 (24th Chet, Svt. 2011), the State Constituent Assembly of State enacted and enforced ‘the Jammu and Kashmir Constitution (Amendment) Act 2011Svt’ amending “Constitution of J&K 1939” whereby Sections 5A, 5B, 5C, 5D, 5E and 5E were incorporated in the Constitution of J&K 1939 with retrospective effect i.e. 14.05.1954. Section 5A, 5B, 5C, 5D and 5E were incorporated to define the term ‘permanent resident’ to mean the ‘state subjects’ as defined and declared in the State Subject Notification No. 1-L/1184 dated 20th April, 1927, read with notification No. 13/L dated 27th June, 1932, however the iajatnama was continued to be in-force for acquisition of immovable property.   


On 17.11.1956, the State Constituent Assembly of Jammu & Kashmir adopted its constitution which is known as Constitution of Jammu & Kashmir. Section 6 of the State Constitution defines permanent residents. Section 6 reads as thus;


  1. Permanent residents:-(1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954-


(a) he was a State Subject of Class I or of Class II ; or


(b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date.


(2) Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or of Class II and who having migrated after the first day of March, 1947, to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State.


(3) In this section, the expression "State Subject of Class I or of Class II" shall have the same meaning as in State Notification No. 1-L/84 dated the twentieth April, 1927, read with State Notification No. 13/L dated the twenty-seventh June, 1932.


Section 7 reads as thus;


  1. Construction of references to State Subjects in existing laws:-Unless the context otherwise requires, all references in any existing law to hereditary State Subjects or to State Subject of Class I or of Class II or of Class III shall be construed as references to permanent residents of the State.


A closer scrutiny of section 6 discloses that a citizen of India who was a State Subjects of class I or class II or who having lawfully acquired immovable property in the State and, had been ordinary residents in the state for not less than 10 years prior to 14.05.1954 were declared permanent residents. Historically, the clause (b) of Subsection (1) of Section 6 are the state subjects of class-III only.  The striking feature is the closer of the opportunity to acquire immovable property by obtainingrayatnama or by applying and obtaining an Ijazatnama and thereby obtaining status of permanent resident after 10 years of such acquisition of property.  


Thus, by virtue of Section 6 of the State Constitution, any citizen who had settled in the state after 14.05.1944 or who has been permanently residing in the state of Jammu and Kashmir, is constitutionally deprived to prove factually that he has been permanently residing in the state. Thus, all those persons who had acquired the status of class I, class II and Class III prior to the cut-off date of 14.05.1944 are declared permanent residents and none other. Note III of the above referred Notification dated 20.04.1927 being referable in sub-section (3) of Section 6 makes is clear that the status of permanent resident is heritable by the descendants of State Subjects only and none others.      


In order to appreciate the import of Section 6, Section 140 requires to be noticed. Section 140 read as under;


S.140. Elections to the Legislative Assembly to be on the basis of adult suffrage.-The elections to the Legislative Assembly shall be on the basis of adult suffrage; that is to say, every person who is a permanent resident of the State and who is not less than Eighteen years of age on such date as may be fixed in that behalf by or under any law made by the Legislature and is not otherwise. Disqualified. [Italics supplied]


Now, if only the descendants of a permanent residents settled prior to 14.05.1944 are entitled to cast their vote to the election of the state legislature which is to discharge public legislative functions and the elected government on such election is to administer state, the issue is whether such a class of descendants can be privileged with the right to vote, in exclusion to the other citizens who are factually residents of the state. The U.S. Supreme Court had the occasion to examine such a question in the case of “Rice Versus Cayetano Governor of Hawai” 120 S. Ct. 1044 (2000). In Rice case (Supra), few facts are to be noticed here.


Hawaii was admitted as the 50th State of the U.S.A.  in 1959. With admission, the new State agreed to adopt the Hawaiian Homes Commission Act as part of its own Constitution. OHA is a State Agency in Hawaiian Islands. OHA is overseen by a nine-member board of trustees, the members of which “shall be Hawaiians” and—presenting the precise issue in this case—shall be “elected by qualified voters who are Hawaiians, as provided by law.” [Haw. Const., Art. XII, § 5; see Haw. Rev. Stat. §§ 13D–1, 13D–3(b)(1) (1993)].


Petitioner Harold Rice was a citizen of Hawaii and a descendant of preannexation residents of the islands. He was not a descendant of pre-1778 natives, and so he was neither “native Hawaiian” nor “Hawaiian” as defined by the statute. Rice applied in March 1996 to vote in the elections for OHA trustees. To register to vote for the office of trustee he was required to attest: “I am also Hawaiian and desire to register to vote in OHA elections.” Affidavit on Application for Voter Registration, Lodging by Petitioner, Tab 2. Rice marked through the words “am also Hawaiian and,” then checked the form “yes.” The State denied his application. Rice sued Benjamin Cayetano, the Governor of Hawaii, in the United States District Court for the District of Hawaii. Ultimately the matter went to the U.S. Supreme Court.  


The term “Hawaiian” is defined by statute as below:


“ ‘Hawaiian’ means any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii.” § 10–2.


The statute defines “native Hawaiian” as follows:


“ ‘Native Hawaiian’ means any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended;


Provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii.” Ibid.


The U.S. Supreme Court while striking down such definitions as racial made some observations which are equally important in the case analysis of Section 6 of the Constitution of J&K. Justice Kennedy writing one of the majority judgment for the Court, wrote;    


“The purpose and command of the Fifteenth Amendment are set forth in language both explicit and comprehensive. The National Government and the States may not violate a fundamental principle: They may not deny or abridge the right to vote on account of race……………. 


…….It is specific in granting the vote to persons of defined ancestry and to no others. The State maintains this is not a racial category at all but instead a classification limited to those whose ancestors were in Hawaii at a particular time, regardless of their race. ………..


The very object of the statutory definition in question and of its earlier congressional counterpart in the Hawaiian Homes Commission Act is to treat the early Hawaiians as a distinct people, commanding their own recognition and respect. The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose.


The ancestral inquiry mandated by the State implicates the same grave concerns as a classification specifying a particular race by name. One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in its concern for persons and citizens.


The ancestral inquiry mandated by the State is forbidden by the Fifteenth Amendment for the further reason that the use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States, 320 U. S. 81, 100 (1943). Ancestral tracing of this sort achieves its purpose by creating a legal category which employs the same mechanisms, and causes the same injuries, as laws or statutes that use race by name. The State’s electoral restriction enacts a race-based voting qualification.


Article 15(1) of the Constitution of India prohibits the State from discriminating on the basis of race. In the case of Nain Sukh Das and others Vs State of U.P. and others A.I.R. 1953 SC 384, the constitutional bench of the Supreme Court has held that the constitutional mandate under  Article 15(1) to the State not to discriminate against any citizen on the ground, “inter-alia” of religion clearly extends to political as well as to the other rights and any election held after the constitution in pursuance of such a law, subject to clause (4) must be held void as being repugnant to the Constitution.


Thus Section 6 read with Section 140 of the State Constitution renders Article 15(1) also bereft of most important ingredient of its core value i.e. Protection against discrimination on the basis of Race. Therefore, the following conclusions can be drawn from the above discussion;


(A) Section 6 of the State Constitution defining “Permanent Resident” and referring and incorporating the same for the purpose of defining “adult suffrage” for confining right to vote to descendants of permanent residents of 1944, to the exclusion of other members of the citizenry resident of J&K is a classic case of discrimination based upon race and is in flagrant violation of Articles 14 and 15(1) and principle of adult suffrage which are part of basic structures of the Constitution of India.


(B) The State Constituent Assembly had no constitutional competence to frame and enact Section 6  and 140 in order to ensure that the class termed as “Permanent Residents and their  descendants” shall vote to the election of State Legislature of J&K.


(C) Section 6 which is claimed to have been enacted on the strength of Article 35A in Part III, has been incorporated unconstitutionally under Section 140 in order to deny the most cherished political rights to the citizens of India i.e. Adult Suffrage under Article 326 of the Constitution of India.


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