- Introduction
On August 15, 1947, when both India and Pakistan became independent, the state of J&K (hereinafter ‘J&K’) did not concede to either of the state’s dominion. In 1946, Maharaja Hari Singh proposed a “standstill Agreement” with both the countries. India did not agree with this agreement and wanted to hold further negotiations. On October 26, 1947, the state of J&K agreed to accede to the Union of India through an Instrument of Accession signed by Maharaja Hari Singh.
The first war over the accession of J&K led to the delay in the integration of the state with the Union of India. When the Constitution was being drafted during the ongoing tussle over Kashmir, the need was felt to incorporate a traditional provision to determine the relationship between India and the State. The provision took the shape in the form of Article 370, which gave “special status” to J&K and defined its relationship with the Centre.
As per Article 370(1) (b) (ii) and 370(1) (d) of the Constitution, the state government’s acquiescence is required when any decision is made under the union or concurrent list excluding the subjects under the Instruments of Accession. The President also calls such acquiescence for the extension of the provisions of the Constitution to the state of J&K. According to Article 370(2) of the Constitution, when Constituent Assembly is called, the state’s concurrence shall be given the priority and this was a temporary measure to establish executive and legislative relations of the Union with the state until the formulation of Constituent Assembly. Moreover, Article 370 states that the president with the recommendation of the Constituent Assembly can declare it inoperative. The Constituent Assembly was setup in 1951 by the National Conference headed by Sheikh Abdullah. In 1952, he entered into the Delhi Agreement with Nehru wherein it was agreed that the state of J&K would have supremacy over the subjects apart from those acceded under the Instruments of Accession. Finally, in 1954, the Constituent Assembly confirmed the accession of the state to India and restated its relationship with India.
The Constitution of J&K which came into force in 1957, with Article 147(c), expounding that no amendment seeking to make any change in the provisions of the Constitution of India in relation to the state can be introduced or put forth in either house of the legislature, which would include the relationship spelled out from Article 370. Therefore, any act of interference with “special relationship” between the State and the Union as embodied in the Article 370 is strictly barred by the Constitution of J&K, thereby bringing perpetuity in the special status granted to the state of J&K.
- The Course of History
The epoch before 1947, J&K was merely a princely state under the British Dominion. The individuals of the princely states were regarded as “state subjects”. During the early 20th Century, the political faction in the state of J&K led to the inception of “hereditary state subject” as a political self for the state’s individuals, and for the recognition of the status, the legal provisions were ordained by the Maharaja in 1927 and 1932. The Hereditary State Subject Order of 1927, passed by Maharaja in insistence of the Pandit Community, granted the state subjects right of ownership and use land and employment, which were denied to the non-state subjects.
In 1947, subsequent to the accession of J&K to the Indian Union, the Maharaja relinquished control over certain subjects namely- defence, external affairs and communication to the Government of India. Article 370 of the Indian Constitution and the collateral Constitutional Order of 1950 gave a formal character to the same. The culmination of 1952 Delhi Agreement extended the status of Indian citizenship to all the residents of the state but it empowered the state government to legislate over the rights and privileges of the state subjects, who were regarded as permanent residents.
Pandit Jawaharlal Nehru in his statement on the 1952 Delhi Agreement, has said-
“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.”
- Controversial Inclusion into the Supreme Law of the Land-
The inclusion of Article 35A is often regarded as controversial because of the fact that it was not inserted into the text of the Constitution through Article 368 of the Constitution.
The Article was added in the Constitution subsequent to the Delhi Agreement reached between Jawahar Lal Nehru and Sheikh Abdullah in 1952, extending Indian citizenship to the ‘state subjects’ of J&K. Drawing its power from Article 370, the then President of India, with the advice of the Union Cabinet, issued an order called ‘The Constitution (Application to J&K) Order’, 1954, which resulted in the insertion of this debated Article in the Supreme Law of the Land.
The premise for calling it a debated article is the fact that the first statement of Article 368(2) states, “An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament…”[1]
The word ‘only’ used in Article 368, makes it pretty clear that the Legislature was not in favour of amending the Constitution by any other way other than the procedure prescribed in Article 368 and the powers given to President under Article 370 were temporary and did not mean to contravene the spirit of the Indian Constitutionalism.
- Resurrection
The issue of Article 370 has always been in news after BJP has come into the power, as abrogating it from the Constitution has remained its priority. However, lately, BJP has realized that it is not as easy as it seemed to be and the issue was subsided considering the sensitive condition of the State.
However, in 2014, an NGO called ‘We the Citizens’ filed a petition in the Apex Court challenging the Constitutionality of the Article. The NGO did not base the main contention made in the petition upon the content of Article 35A but the misuse of its language by the State Government. The petition stated that the State Government under the garb of Article 35A and 370 discriminates against the Non-Permanent residents, who are debarred, under the former, from acquiring immovable properties, secure a government job or even to cast a vote in local elections. Based on these arguments, the NGO has called for striking the Article down because of its unconstitutional element.
Subsequent to this PIL, a SC lawyer Charu Wali Khanna filed another PIL, contending that the Article conveniently violates the ‘Right to Equality’ guaranteed by Article 14 of the Constitution. Two Kashmiri women were denied their right to acquire immovable property after their marriage to non-permanent residents, but the same was not applicable on males, in spite they marrying non-permanent women residents. This acted as a ground for filing the petition and challenging Article 35A. The only contention made by the Lawyer was that this Article is discriminatory to women and therefore, must be struck down.
The two petitions therefore, can be regarded as a cause that re-ignited this debate. The first petition challenged the Constitutional validity of the Article by contending that it acts as an impetus for the State Government to discriminate against the non-permanent residents and the second one argues that this Article is discriminatory against the women.
The Court, for the sake of brevity, clubbed both the petitions and asked for the reply from the Centre and the State. The Central government through its Attorney General contended that the case involves a sensitive issue and therefore, needs a larger debate and said that since the matter involves a substantial question of Constitutional law, a larger bench must decide on it. The Court, while agreeing on both the points, deferred the plea until January 2018. A conclusion may be drawn only after the January hearing is done but one thing can be easily said that even the Apex Court, before arriving at any conclusion, would think it through, as it is a sensitive matter and a whole State depends upon the fate of this Article.
- Judicial Stance over the Burning Issue
The Judiciary in India is commonly regarded as an institution that fetters a check on the powers of the other two organs and ensures that, the persons who are subject matter of any particular law abide the law. Judicial Review or rather Judicial Activism nowadays is the method by which Judiciary regulates the power of legislature. Over the time, Judiciary has emerged as an emancipator, which emancipates the citizens from the laws, which are restrictive in nature or violative of the Fundamental Rights.
Due to the aforesaid perception of Judiciary, people approach it with hope. However, the same has not been the case when it comes to the judicial interpretation of Article 35A. The petitions filed in the Apex Court and the subsequent discussions about the Article’s validity have again brought the issue to life, which was substantially decided by the Apex Court in Puranlal Lakhanpal v. President of India and Others.[2] In this case, as petitioner argued, the President exceeded his power under Article 370(1) and instead of modifying, radically altered the application of Article 81 to the State of J&K. The petitioner, while raising this contention, relied on a previous Apex Court’s judgment In re Delhi Laws Act[3], the Court held that the word ‘modification’ in general would not include an amendment or any substantial alteration. The Apex Court, however, while demurring with the petitioner, held that under Article 370 President has been given the power to amend any provision, as he thought to be fit for the application to the State of J&K.[4] It also differentiated this case with In re Delhi Laws Act[5] case, by saying that the word ‘modifications’ as used in Article 370 was not the issue in question and therefore; the ratio decidendi of that case cannot be applied in this case.[6]
This decision though dealt with a different issue but may be used as a reference while discussing about the judicial outlook of Article 35A. Further, the Court did not deal with the question that whether President can add any provision into the Constitution in the name of ‘modification’ as given in Article 370(1) or not. Therefore, the issue remains a res integra.
The authors have tried to reflect the reluctant approach taken by the Judiciary in dealing with Article 35A. Further, the authors have also tried to show that how it has saved itself from dealing with the issue comprehensively.
Soon after the first challenge to the 1954 Order in the Puranlal case[7], another challenge was made in Sampat Prakash v. State of J&K and Anr.[8] In this, Supreme Court did not buy the arguments made against Article 35(c), which empowered the J&K Legislature to detain any suspect for the cause of prevention without abrogating Article 22 or any other provision of the Constitution. It also rejected the argument that the power of President under Article 370 is restricted only to modify and not to amend the Constitution. The Court, while rejecting these contentions, held that the power of President under Article 370 should be considered in its widest possible amplitude so that, it could include the power of the President to amend a particular provision of the Constitution in its application to the State of J&K.[9]
This decision by the Court gave an unfettered discretion to the President to amend any provision of the Constitution in its application to J&K, according to his whims and caprice. Consequently, Article 35A got validation, as it was also the result of the discretion exercised by the President under Article 370.
Further, the incompetency of the Apex Court in deciding a matter against Article 35A, even though it compromised the fundamental rights, was revealed by itself only in Bachan Lal Kalgotra v. State of J&K and Ors.[10], wherein, the Apex Court, in spite of realizing the anomalous position of West Pakistan Refugees, could not provide them relief owing to the presence of Article 35A and was only good enough to ask the State Legislature of J&K to consider the prayers of the petitioner and provide them the adequate relief. This case showed the disability of the Apex Court and made it look like a handicapped. The Judiciary, which was considered as an institution to protect the Fundamental Rights of the citizens, appeared to be a toothless tiger in this case.
Despite these judgments of the Apex Court, a re-examination may be done, as we have seen that the judiciary has often solved political problems in a legal manner. A fresh example of the said instance can be the Triple Talaq Case.[11] The Apex Court, in this case, significantly, held the practice of Triple Talaq, though it was a matter of personal law, unconstitutional. The Court, in declaring the practice as unconstitutional, applied the doctrine of arbitrariness, which states that if any law is prima facie arbitrary, Article 14 automatically hits it. Further, in order to substantiate, the Apex Court relied on a plethora of its own decisions[12] and held another as per incuriam.[13] Looking at the number of judgments cited and followed by the Apex Court in holding the practice of Triple Talaq as unconstitutional on the ground of its arbitrary nature makes it clear that the judiciary has been more considerate than it has been in case of Article 35A. It has remained quite active in striking down the arbitrary and discriminatory provisions and has been seen as the protector of human rights, most recently in the Privacy Judgment.[14] Hence, it would be interesting to see the stance that the SC may take in the petitions filed against Article 35A.
There is a possibility that the petition filed by Charu Wali Khanna, who was denied her right to acquire immovable property in J&K after marrying a non-permanent resident, may get a positive answer by the Apex Court. This prediction can be made because of a J&K High Court decision on the same issue, where it held that a woman does not lose her status as a permanent resident on marrying a non-permanent resident.[15] However, the issue that remained unanswered is the status of the children and the husband of such women, who marry a non-permanent resident.
If Shayara Bano Case[16] is followed, then Article 35A may be held unconstitutional. Moreover, the power of the President under Article 370(1) will be restricted and therefore, there would be a major change in the position of law. To avoid the same, the Court, while striking it down, may rely on the doctrine of prospective overruling given in the Golaknath case.[17] But if SBI v. Santosh Gupta[18], where it was held that a challenge against 35A cannot be made on the ground that it is in contravention with the Fundamental Rights, is followed or the decision in Sampat Prakash v. State of J&K[19], is relied upon, then the status of Article 35A may remain the same.
- The Source of Validity- Article 370
Article 370 in the Constitution is regarded as the root cause of the present controversy. This all started on October 26, 1947, when the Pakistan sponsored raiders entered into the princely state of J&K. At this moment, Maharaja Hari Singh was left with only two choices- to either concede his State to Pakistan or call India for help. Maharaja chose the latter and signed the instrument of accession, which allowed the Indian troops to enter and defend the territory of J&K.
This Instrument of accession was however, a bit different from the other ones, as it only preserved the subjects of Defence, External Affairs and Communication for the Government of India and left the rest upon the discretion of the State legislature. This exception in the Instrument of accession of J&K gave a special autonomy to the State. Now, Article 370 was the outcome of an understanding between Sheikh Abdullah and Nehru under which a special status was granted to J&K and Sheikh Abdullah was appointed as the Prime Minister of J&K in 1947.[20] The Article was included for preserving a unique identity of the State. Though the Article was enacted temporarily, it still holds significance after 70 years of Independence.
Article 35A can be regarded as an offshoot of Article 370 since it was enacted by the Presidential Order of 1954 promulgated by the President in conjunction with the power given to him under Article 370. Hence, Article 35A obtains its validity from Article 370 (1). Article 35A allows the J&K State government to define the permanent residents and reserve certain rights such as- right to acquire immovable property; the right to secure a State Government job and the right to get government aids such as scholarships, etc. for their exclusive usage. It also empowers the State to deny these aforementioned rights to the non-permanent residents of the State and thereby, violating their basic Fundamental Rights under Article 14, 15, 16 and 19.
The debate holds importance as Article 35A clearly abridges the Constitutionally backed Fundamental Rights of the non-permanent residents and this has also called into question, the validity of Article 370. Therefore, with the Constitutional determination of Article 35A, its source, Article 370 also remains in a controversial danger zone.
Despite being a political issue prima facie, it went upto the Court due to the chasm between the manifesto of the BJP in the 2014 Lok Sabha elections and the J&K Legislative Assembly elections. In the former, BJP claimed of abrogating Article 370 on forming the government at Centre whereas in the latter, it stated that the present position of Article 370 would be maintained on all Constitutional provisions including special status for the State of J&K. All this was done to serve their political purposes. Due to this, the issue suffered a lack of clarity as the ruling party itself was not clear of its own stance over the issue. However, recently the Centre asked the SC to refer the current petitions filed to a larger bench as it contains a substantial question of Constitution.
Furthermore, finding it as a chance to win Kashmiris’ heart, even Pakistan, while interfering with the internal matter of India, has wrote to the UN Security Council over the matter and joined the band wagon.[21] Now, it would be interesting to see, as to what surprises will be brought by the decision of the Constitutional bench of the Apex Court. Whatever the Court pronounces, it would be hard for anyone to deny that Article 370 not only did give a foundation to discriminatory provisions like Article 35A but also enabled the Kashmir Valley to colonize the Jammu and Ladakh region, culturally.[22] Moreover, the gravity of the issue is discernible from the fact that even the Judiciary has not been on the same page on the status of temporary nature of Article 370. One such instance is the ruling of J&K High Court in 2015, where it clearly held that Article 370 is permanent and cannot be abrogated, repealed or amended.[23] In addition to this, it also held that under Article 370, the word ‘modifications’ used can be said to include, to alter or amend the provisions as the intent of the legislature behind drafting Article 370 was to provide it with a special status.[24] Thereby, giving the power to the President to amend or alter any provision of the Constitution as he thought to be fit. In the backdrop of such verdicts, it would be interesting to see whatever the Apex Court decides.
- Article 35A: An Oxymoron? (Tussle between 35A and 19 (1)(e))
Before elaborating upon the issue, the Authors would like to define the word ‘Oxymoron’ as “a figure of speech in which apparently contradictory terms appear in conjunction.”[25] On a careful scrutiny of the definition of ‘Oxymoron’, as provided in the Oxford dictionary, it would be safe to argue that Article 35A seems to contain oxymoronic element.
The Article is contained in Part III of the Constitution, which, every now and then, is considered as the basic structure of the Constitution because it enshrines the Fundamental Rights of the people and guarantees to recompense them on their breach via Article 32. However, Article 35A itself, despite being under Part III, abridges the basic fundamental Right to Equality of the citizens who are not the permanent residents of the State of J&K.
It prevents non-permanent citizens of J&K from acquiring immovable property in the State or securing Government jobs or even getting State Government’s scholarships. Though, Right to Property has not remained a fundamental right now[26], but the Constitution still gives you a right to reside or permanently settle in any part of the territory of India.[27] This right is apparently abrogated by Article 35A by not allowing the Non-permanent residents from settling in the State of J&K.
The authors just to reflect the contradictory element present in Article 35A have used the word ‘Oxymoron’. Being part of the basic structure of the Constitution, which majorly consists of the Fundamental Rights of the citizens, the Article clearly infringes the very basic fundamental right i.e., the Right of Equality, of the non-permanent citizens and even the permanent residents, in case of a woman and while doing so it vitiates the spirit of the Indian Constitutionalism.
- Consequences of Challenging Its Endurance-
Article 35A, as discussed above, provides for special status to the Permanent Residents of J&K in respect of Government Jobs, Immovable Property and Government Aids and Scholarships etc.
The Kashmir valley, since its accession into the Indian Union, has remained perturbed majorly because of two reasons, which do not seem to be settling in the near future. Firstly, the majority of people in Kashmir have always demanded for an independent and a sovereign Kashmir in respect of all matters even including the defence and secondly, the parallel claims made by Pakistan of exercising autonomy over the Valley.
Now, due to these factors, the Kashmiris have always remained apprehensive about the autonomy granted to them by Article 370 and have always threatened for serious consequences if the Centre tampers with the Article. Moreover, as apparent as it is, according to the extreme Rightists, the most viable solution to the issue has been to transform its demography and for achieving the purpose, they have always propagated for countermanding Article 370 and therefore, Article 35A. By countermanding Article 35A, would be granted rights which they were previously denied.
As soon as the Apex Court decided to hear the PIL that challenged the validity of Article 35A, the parties like PDP and the National Conference started raising concerns over the issue and its politicization happened before long. Infact, attempts to abrogate the Article have been seen as an assault on the special status of J&K.[28] The political sentiments of State are in turmoil.[29]
The hoi polloi of J&K have never been in complete support of the idea of being ruled by India and any attempt of altering with Article 35A may lead the Government at centre into the mire. It may also shatter the remaining trust that people of J&K have in the Union of India.
The deletion of Article 35A may leave the accession of J&K into the Union of India in jeopardy. Moreover, the other effective provisions added by the 1954 Presidential Order would be rendered ineffective if 35A is struck down. The defined Constitutional relationship and an already weak rope of attachment between the Centre and the State of J&K may get worsen to the extent of unmanageable. This would leave the State in turmoil and the notorious elements would creep in, making the return of normalcy a distant dream.[30]
The valley has already been on surge since last year after Indian Army killed Hizbul Mujahideen leader Burhan Wani. Subsequent to this incident, many ordinary people have died in the clashes between Armed forces and rebellion groups, in past one year. Owing to this and many other factors, the regular life in the State has become a dream. Now, tinkering with Article 35A under such conditions will only aid in escalating the unrest in the valley and may culminate into a violent and unpleasant end to the relationship of the State with the Union. This is the reason why this Article has gathered support from too many politicians and therefore, there is a need to protect this Article and the State from seceding from the Union.
- The Debacle it may Create
The concept of Fundamental Rights, commonly known as Natural or Human Rights is based on the Natural Law theory that states that individuals have certain basic rights, which cannot be abrogated by the state. This theory of Natural law created awareness among the individuals of their rights. The influence of Natural Rights can be found not only in the Part III of the Indian Constitution but also in the bill of rights of different jurisdictions. For example- UDHR, US Bill of Rights, etc.
The Fundamental Rights represent the basic values cherished by the people of India and they assure to protect the dignity of the individual and create conditions in which every individual can develop his personality fully.[31] The Fundamental Rights inflict a negative right on the state, wherein it imposes an obligation upon the Government to respect rather encroach upon those rights. Furthermore, Article 7 of the Universal Declaration of Human Rights enacted by the United Nations has given a more concrete form to the notion of Fundamental Rights.[32]
The first of the fundamental rights enshrined in the Constitution is the Right to Equality under Article 14-18. Under the Constitution, this right being one of the corner stones of the Indian Democracy puts an obligation on the state not only as a negative right that ought not to be discriminated but also as a positive right to be treated as an equal so that everyone gets the equal status he is entitled to.[33] Article 14 guarantees every individual the right to equality before law or the equal protection of laws under the Constitution. The underlying principle behind Article 14 is that all persons similarly circumstanced should be treated alike in both privileges conferred and liabilities imposed.[34]
Intriguingly, the rights guaranteed under Part III are subject to Article 35A of the Constitution. The Article states that any law of J&K that is repugnant to the Fundamental Rights enshrined under the Constitution of India shall be held to be valid, in matters relating to acquisition of immovable property, right of employment and right to avail government aids in the State. This special treatment enjoyed by the permanent residents of J&K is in violation of the principle ‘equality before law’. The Article poses list of serious questions, which need to be answered by the Supreme Court.
The Special treatment given to the permanent residents of the State of J&K has caused great controversy and havoc. Till date, the rationale behind retaining this special status has just been to protect the individuals of the state from exploitation. However, the question that arises here is that from whom they need protection. Considering the Notification No. I-L/84 of 1927, the state subjects were preferred over the outsiders in cases of employment and for acquisition of property. Such restrictions in lieu of the notification can be said to be reasonable since during that time Kashmir was an independent state. However, now since the state is an integral part India and the permanent residents are Indian citizens, the assertion of getting special treatment seems unreasonable and this hits the concept of fraternity as envisaged in the Preamble of the Constitution.
Article 35A has posed blockade on the agglutination of J&K with the Union, being in derogation of the mandate of “Right to Equality” guaranteed under Article 14 and 16 of the Constitution of India. Article 35A makes a distinction between permanent residents of the state and non-permanent residents and West Pakistan Refugees who are citizens of India settled in Jammu Kashmir but not being the permanent residents of the state. It regards a non-permanent resident of J&K as second-rate citizen. As per the provisions of citizenship incorporated in the Part II of the Indian Constitution there is no such distinction made in the Constitution as enumerated above. Thus, the classification made by Article 35A falls short of “intelligible differentia” as it has no rational nexus for the classification.
We can say that if “Triple Talaq” is prejudiced against the Muslim daughters of the Country, Article 35A prejudices against the daughters of the territory of J&K. If this Article is not tinkered, then it will violate the rights and create inequality for the woman of state subjects to marry a man of his choice, and if she does that then their offspring would not get the status of permanent resident, which is not the case for male members.
The Article is also in violation of the rights of SC and ST. In 1957, the valmikis were given the certificate of permanent residents on the condition that their descendants will be allowed to reside in the state only if they do not lose their work status. This denial of the certificate on the ground of opting out of ancestral job can be said to be unreasonable and is in violation of Article 15 and 16 of the Constitution of India
Moreover, relying on the promise made by Sheikh Abdullah, the Refugees who stayed in the state and did not migrate anywhere else are the worst sufferers of Article 35A. It’s been 70 years now and till date these refugees have not been granted citizenship status and have been subjected to unemployment, poverty, illiteracy etc. Since they are deprived of their state subjects, they can be termed as Indian citizens but living as an orphans in their state.
Therefore, one can say that the Article has not just created a wall of severance between the state subjects and India, but also within the state subjects.
- The Need of the Hour- A Panacea not a Solution
“When your house is on fire, you don’t discuss whether you should convert your bed room into a drawing room or dining room into a kitchen. You first deal with the fire.”
– Nani Palkhivala
The fire that broke out in the Kashmir valley around 70 years ago is yet to be watered down and due to this fire, whole State has been facing the rage of communal hatred and unstable politics. In order to serve their own purpose, even political parties, instead of curbing this menace, keep on pursuing their ideologies based on these burning issues. The authors have used the word ‘panacea’ considering the fact that many tries are given and none actually worked out and hence, the need of the hour is a ‘panacea’ that can holistically recompense stability of the State.
Article 35A of the Constitution, unfamiliar to the public domain until contemporary times, has triggered an intense debate in the country. The Article was added in the form of an “appendix” rather as an “amendment”. We as authors believe that any question raised on the validity of Article 35A should necessarily include a more serious question over Article 370, which in the pretext of “special status” has remained the biggest roadblock in the integration of the state with India.
That time for the nation has arrived, when it is imperative that all the unprejudiced and egalitarian forces including the political parties and the individuals from civil society should come forward and discuss the situation. The former CIC, MM Ansari in his interview proposed a way out to the problem- “Article 370 is a ‘temporary’ provision and should be made ‘permanent’ to assure a special status to J&K.”[35]
We believe that there still exists some hankering in the state to unite with India. The solution lies in understanding what suits best to the Kashmiris instead of doing away with the Article. The legal route is the best outcome that can be achieved. However, before reaching to the outcome it is necessary to consult the representatives of Jammu and Ladakh. Only one voice should not flow from the valley, entire state’s view should be considered.
Recently, Minister of Home Affairs Rajnath Singh gave a “permanent solution” to the problem by invoking 5 C’s-‘Compassion, Communication, Co-existence, Confidence building and Consistency, which can only be achieved by embracing Kashmiris.[36]
Another solution could be that the State can give given full citizenship to non-permanent residents conditionally. Piecemeal efforts like identity certificates may help secure Central government jobs but land ownership is still a point of discord. A more well-grounded solution would be a ‘Chakma-style lead’, which is, giving citizenship status with a proviso that grants employment, education and voting rights but restricts the right of land.[37]
The battle for Article 35A is a political one and therefore the need arises when state’s political parties need to unite and find a common way out to the problem because seeing the present turmoil, it can be very well deciphered that the state is at edge of losing its existence as well as the identity. Therefore, instead of abrogating the article, what is best suited to the valley should be figured out after extensive deliberations.
This article is written by Aakash Laad and Srishti Gupta, Aakash and Srishti are students at RMLNLU, Lucknow. This article secure 9th position in the RostrumLegal Essay Competition, 2017.
References
[1]Art. 368 (2), the Constitution of India.
[2]Puranlal Lakhanpal v. President of India and Others, AIR 1961 SC 1519.
[3]In re Delhi Laws Act, AIR 1951 SC 332.
[4]Supra 3.
[5]Supra 4.
[6]Supra 3.
[7]Supra 3.
[8]Sampat Prakash v. State of J&K and Anr., AIR 1970 SC 1118.
[9]Ibid.
[10]Bachan Lal Kalgotra v. State of J&K and Ors., (1987) 2 SCC 223.
[11]Shayara Bano v. Union of India, (2017) 9 SCC 1.
[12]E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3; A.L. Kalra v. Project and Equipment Corporation, (1984) 3 SCC 316; D.S. Nakara v. Union of India, (1983) 1 SCC 305; Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Ajay Hasia v. Khalid Mujib Sehraverdi, (1981) 1 SCC 722; Babita Prasad v. State of Bihar, 1993 SCC (L&S) 1076.
[13]State of Andhra Pradesh v. McDowell and Co., (1996) 3 SCC 709.
[14]Justice K.S. Puttuswamy (Retd.) v. Union of India, W.P. (Civil) 494 of 2012 (Supreme Court, 24/08/2017).
[15]State of J&K v. Dr. Susheela Sawhney, AIR 2003 J&K 83.
[16]Supra 12.
[17]Golaknath v. State of Punjab, AIR 1967 SC 1643.
[18]SBI v. Santosh Gupta, (2017) 2 SCC 538.
[19]Supra 9.
[20]Sanjay Sapru, J&K State: Accession, Article 370 and 35A, Greater Kashmir (19/08/2017), available at https://www.greaterkashmir.com/news/opinion/j-k-state-accession-article-370-and-35a/258100.html, last seen on 11/12/2017.
[21]Ibid.
[22]Niharika Tagorta, How Articles 370 and 35A Enable Kashmir Valley To Culturally Colonise Jammu And Ladakh, Swarajya (30/07/2017), available at https://swarajyamag.com/politics/how-articles-370-and-35a-enable-kashmir-valley-to-culturally-colonise-jammu-and-ladakh, last seen on 11/12/2017.
[23]Bashaarat Masood, Art 370 permanent…cannot be repealed or amended: HC, The Indian Express (12/10/2015), available at https://indianexpress.com/article/india/india-news-india/j-k-high-court-says-article-370-is-permanent-cant-be-abrogated-repealed-or-amended/, last seen on 13/12/2017.
[24]Ibid.
[25]Oxford Dictionary, available at https://en.oxforddictionaries.com/definition/oxymoron, last seen on 16/12/2017.
[26]Section 3, the Constitution (Forty-fourth Amendment) Act.
[27]Art. 19 (1)(e), the Constitution of India.
[28]Abrogation of Article 35A: What it means for permanent residents of Jammu and Kashmir, Firstpost, available at https://www.firstpost.com/india/abrogation-of-article-35a-what-it-means-for-permanent-residents-of-jammu-and-kashmir-3906747.html, last seen on 13/12/2017.
[29]Why It’s Dangerous For The Centre To Tamper With Article 35A In Kashmir, Huffpost, available at https://www.huffingtonpost.in/2017/08/07/why-its-dangerous-for-the-centre-to-tamper-with-article-35a-in_a_23068270/, last seen on 14/12/2017.
[30]M.Y. Tarigami, To Article 35-A…, Greater Kashmir (15/08/2017), available at https://www.greaterkashmir.com/news/opinion/to-article-35-a/257721.html, last seen on 17/12/2017.
[31]Maneka Gandhi v. Union of India, AIR 1978 SC 597, 619.
[32]Art. 7, UDHR 1948, (UN).
[33]V.N. Shukla’s Constitution of India, 37 (M.P. Singh, 10th ed., 2007).
[34]In Re Special Courts Bill, AIR 1979 SC 478.
[35]Scrapping Article 35A will pave the way for disintegration of J&K¸ Rediff, available at https://www.rediff.com/news/interview/scrapping-art-35a-will-pave-way-for-disintegration-of-jk/20170829.htm, last seen on 18/12/2017.
[36] Bashrat Masood, Not just article 35-A: Centre won’t do anything to hurt feelings of J-K, says Rajnath Singh, The Indian Express (12/09/2017), available at https://indianexpress.com/article/india/home-minister-rajnath-singh-gives-assurance-on-article-35a-to-people-of-jammu-kashmir-4839047/, last seen on 17/12/2017.
[37]Sheikh Attar and Palvi Singh Ghonkrokta, Time to Clear Up the Fallacies Around Kashmir’s Article 35A, The WIRE (30/10/2017), available at https://thewire.in/189471/supreme-court-kashmir-article-35a, last seen on 18/12/2017.