A.G. Noorani
The Sangh Parivar’s chauvisim and ignorance feed on each other. Nowhere is this more evident than on the distinct identity of the State of Jammu and Kashmir. The State’s autonomy was guaranteed by Article 370 of the Constitution. Its people’s ancient rights are guaranteed by Article 35A.
We discuss Article 35A in this article. It reads 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.”
Special provisions
Compare this with Article 371A on Nagaland, which reads thus: “371-A. Special provision with respect to the State of Nagaland:– (1) Notwithstanding anything in this Constitution, (a) No Act of Parliament in respect of – (i) religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.”
Article 371A is, if anything, much wider than Article 35A. Article 371G in respect of Mizoram is identical to Article 371A. Speaking of special provisions there are other special provisions in respect of Maharashtra and Gujarat (Article 371), Assam (371B), Manipur (371C), Andhra Pradesh (371D), Sikkim (371F) and Arunachal Pradesh (371H).
Article 35A was inserted by the President by an order under Article 370 on May 14, 1954, but on the explicit recommendation of Kashmir’s Constituent Assembly on February 15, 1954, while adopting the report of its drafting committee. The President cannot delete it because the Constituent Assembly is gone. Without its concurrence, Article 35A can neither be amended nor deleted. The other “special provisions” were enacted by Parliament as amendments to the Constitution. Will Parliament dare to repeal them?
Article 35A cannot be amended or deleted by Parliament. For, Clause (2) to Article 368 on constitutional amendments says that “no such amendment shall have effect in relation to the State of Jammu and Kashmir unless by order of the President under clause (1) of Article 370”.
For this, the approval of the State’s Constituent Assembly is necessary. Any concurrence of the State government is always subject to the Assembly’s final approval. When the State is under Governor’s Rule or President’s Rule, neither can accord that concurrence as if he was the State government. The Centre cannot acquire “concurrence” from its own handpicked appointee removable at will. Yet, on February 28, 2019, the Union Cabinet decided to amend the Jammu and Kashmir Reservation Act to extend benefits of reservation to those near the international border in Jammu. It will extend the Constitution (77th Amendment) Act, 1995, and the Constitution (103rd Amendment) Act, 2019, to Kashmir by an order by the President under Article 370 of the Constitution.
That will be a nullity for such an order could have been passed only on the recommendation of the State government and then also subject to its ratification by the State’s Constituent Assembly which vanished in 1956. There is no elected government now, and an Explanation to clause 1 of Article 370 explicitly defines the State government to mean a Council of Ministers in the State. There is no such Council of Ministers now.
There is a clear ruling of the highly respected and truly independent Supreme Court of Sri Lanka on this. It was delivered on November 1, 2012, and was extensively reported by Puneeth Nagaraj in The Hindu on December 7, 2012. It concerned the Divineguma Bill. He reported: “The Bill was challenged before the Supreme Court through several petitions. As per Article 154G (3) of the Constitution, the Supreme Court sent it back to the government saying it had to be ratified by the Provincial Councils. There has never been a provincial council in Northern Sri Lanka (not counting the short-lived North-Eastern provincial council), and the province is run by Colombo through the Governor. It was the Governor who ratified the Divineguma Bill on behalf of the Northern Province. This was immediately challenged by the Tamil National Alliance before the Supreme Court through two petitions. On November 1, the Supreme Court held that the Governor cannot ratify the Bill in place of the Provincial Council.”
But the law will not suffice, for Article 35A is embedded in Kashmir’s history and psyche. Talk of repeal poses an existential threat. The Maharaja’s order of June 27, 1932, imposed a ban on “foreign nationals” in respect of citizenship and purchase of immoveable property. Even the British dared not to flout it. Hence the houseboats on which they lived for years. Earlier, a notification of April 20, 1927, defined “State Subjects”. In 1950, Section 6 of the State’s Constitution defined “permanent residents”. Even in the 19th century such protection was granted. The Dogras of Jammu demanded it as much as the Kashmiri Pandits of the Valley. Both feared that Punjabis would grab lands and jobs.
Permanent occupants
Pandit Prem Nath Bazaz dealt with this topic in his books, Inside Kashmir (The Kashmir Publishing Co., Srinagar, 1941) and in The History of Struggle for Freedom in Kashmir (Pamposh Publications, 1954). In Inside Kashmir he recorded: “The Maharaja owned the lands. Chekdars or tenants-at-will could occupy them so long as they paid the revenue but could neither sell nor mortgage his land. At the beginning of the 20th Century ‘a new problem confronted the people’—the outsider occupying posts in the administration. In 1912 a definition of the ‘State Subject’ was formulated for the first time. ‘The cry of “down with the outsider” was raised mostly by the Hindus.’” Muslims were excluded from State jobs by the Dogra ruler and were too poor to own lands.
In 1922 a State Council of Ministers was formed. Hari Singh, the heir apparent to the throne and Senior Member of the Council, issued a circular which said:
The Maharaja Sahib Bahadur has been pleased to direct that in future no non-State subject shall be appointed to any position without the express orders of His Highness-in-Council in each case. Each such proposal shall be accompanied by a full statement of reasons in writing as to why it is considered necessary to appoint a non-State subject, it being definitely stated whether there is no State subject qualified and available for the appointment proposed. In like manner no scholarships or training expenses of any kind should be granted to non-State subjects. His Highness has also directed that any infringement of this order will be very seriously dealt with.
His Highness the Maharaja Sahib has been pleased to inform you that in future all grants of land for agricultural and house-building purpose and grant of houses and other State property shall be made to State subjects only. . . .
A State Subject Definition Committee was set up. It submitted its report in 1925, the year Hari Singh became Maharaja. He readily accepted its recommendations. A definition of “Hereditary State Subject” was formulated and it became law from January 31, 1927, in the form of a notification dated April 20, 1927.
Bazaz pursued the topic in his History showing how Muslims were outside the entire debate. “The poverty of the Muslim masses was appalling. Dressed in rags which could hardly hide his body and barefooted, a Muslim peasant presented the appearance rather of a starving beggar than of one who filled the coffers of the State. He worked laboriously in the fields during the six months of the summer to pay the State its revenues and taxes, the officials their rasum and the money-lender his interest. Most of them were landless labourers working as serfs of the absentee landlord. . . . In the countryside the Muslim was synonymous with the hewer of wood and drawer of water. All sort of dirty and menial work was to be done by him. A Hindu was respectable in the eyes of the society, and the Muslim, because he was a Muslim, was looked down upon as belonging to an inferior class.” It was the Kashmiri Pandits who had launched the movement “Kashmir for Kashmiris”.
Bazaz wrote that the 1927 “definition all at once stopped the recruitment of the Punjabis in the services. But it did not equally benefit all the communities residing in the State. With Hari Singh’s pro-Dogra policy in operation, the people of Jammu, particularly Rajputs, got the most of the big jobs while the Pandits were recruited as clerks in offices vacated by the Punjabis. Needless to say that the Muslims were as yet out of the picture.”
Thus, Article 35A is purely “clarificatory”. It is based on the Maharaja’s notification of April 20, 1927, which was issued at the instance of Kashmiri Pandits, who feared an influx from Punjab.
Delhi Agreement
The matter came up in 1952 when the Delhi Agreement was under negotiation. On July 20, 1952, Jawaharlal Nehru met a Kashmiri delegation comprising Sheikh Abdullah, Mirza Afzal Beg, Bakshi Ghulam Mohammed, Girdhari Lal Dogra and D.P. Dhar. Nehru’s record of the talks reads:
The Kashmir delegation were anxious that the rights and privileges given to ‘State subjects’ (Jammu and Kashmir notification dated 20th April 1927) should be preserved, subject to such variations as the Constituent Assembly of the State might decide upon. These rights and privileges relate more specially to the acquisition and holding of immovable property, appointment to services, etc.
It was pointed out that under Article 19(5) of the Constitution this was clearly permissible both in regard to the existing law or any subsequent legislation on the subject. . . . It was agreed therefore that: ‘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 service and like matters. Till then, the existing State law would apply.’
Article 35A is based on a solemn pact between the Union and the State in 1952. It cannot be altered unilaterally.
Nehru’s statement
Speaking in the Rajya Sabha on August 7, 1952 on the Delhi Accord, Nehru said:
Honourable Members know that Kashmir is supposed to be one of the beauty spots of the world. And apart from its being a beauty spot, there are many other things which attract people there. And from olden times the old Maharajas, who succumbed to many things that came from the then British Government, did not succumb to one thing. They were afraid that the climate of Kashmir and its other attractive features being what they are, that Kashmir might become a kind of colony of the British if they came and settled down there in large numbers. They were afraid of that. So they stuck to one thing—that no foreigner could acquire property in Kashmir. And they did keep them out. They made rules to the effect that only State subjects could acquire property except by special permission, and so on. . . .
These rules in regard to property still subsist. Those are the rules in regard to property in Kashmir and everybody in Kashmir, to whatever group or community or religion he belongs, wants to uphold these rules, naturally, because they are for the benefit of the residents of Kashmir, whether Hindus or Muslims. They are afraid that people from India or elsewhere, rich people and others, might come and buy up property there, and thereby gradually all kinds of vested interests would grow up in property in Kashmir on behalf of people from outside. . . .
We thought it was a perfectly justifiable feeling on their part, and that acquisition of property in Kashmir State should be protected on behalf of the people there. . . .
The House will perhaps remember that we have given protection in this regard in various parts of the territories of India. For instance, in the north-east of Assam tribal areas we have given them protection. Nobody from outside can go and take possession of property there, because if we once give them permission, there is no doubt that these tribal people will be exploited by outsiders who will go there and buy up their lands and use them for making money while the people of those areas will go to the wall. So we agreed that to avoid exploitation of the (J&K) State territory it was desirable that these rights and privileges should continue. As a matter of fact, under Article 19(5) of our Constitution this was clearly permissible—and that is our view even now—both in regard to existing law or any subsequent legislation.
It is highly significant that even New Delhi’s stooges, who staged the coup of August 8, 1953, at Nehru’s instance, did not dare to renege on the understandings of 1952 in 1956. The Drafting Committee, now radically changed, presented its report to Kashmir’s Constituent Assembly on February 11, 1954. The Report recommended certain amendments to the Constitution of India in its application to Kashmir. Article 35A was one of them. It was adopted by the Assembly on February 15, 1954, and the amendments were incorporated in the President’s Order of May 14, 1954, entitled The Constitution (Application to Jammu & Kashmir) Order 1954; it added Article 35A.
Article 35A is thus part of a compact between Kashmir and the Union. However, the fact is commonly overlooked: that even repeal of Article 35A—which is constitutionally impossible—will not alter the situation. For, the notification of 1927 is part of the Constitution of Jammu and Kashmir. Thus, independently of Article 35A, the definition in Section 6 of the State’s Constitution will still apply. All that Article 35A does is to protect laws on permanent residents from challenge on the ground that they violate fundamental rights. Article 35A is part of the Delhi Agreement between two governments, of India and of Jammu and Kashmir, concluded 65 years ago. No court can or should ignore this fact.
