ARTICLE 35A A MISHMASH OF THE TEXTUAL CONSTITUTION OF INDIA!
Professor Dr. K.L. Bhatia
B.A. (Hons) (J&K); LL.B. (ILS Pune University), LL.M., Ph.D. (Pune)
DAAD and Max-Planck Fellow and Alumni
Presently Professor of Law, National Law University, Jodhpur
[Former Head, Dean and founder Director The Law School, Faculty of Law, University of Jammu; Director Amity Law School; Dean and Professor Emeritus UPES; UNDP Professor Public Law]
Introduction — A revisit to Article 35A read with Articles 370 and 368
Article 35A was neither a part of the draft Constitution nor a part of the adopted and enacted text of the Constitution of India. This Article was an addition to the fundamental rights (Part III) of the Constitution by a Presidential Order, viz., Constitutional (Application to Jammu and Kashmir) Order 1954, which extended the application of various provisions of the Constitution of India to Jammu Kashmir with such modifications, exceptions and alterations with the concurrence of the government of the State. Article 368 was also extended in its application to the State but with a proviso to the effect that “no such amendment shall have effect in relation to the State of Jammu Kashmir unless applied by order of the President under clause (1) of Article 370”. Be that as it may, from the reading of this provision it cannot be construed that the President of India is empowered to exercise the constituent power of the Parliament under Article 368 to add any provision in the fundamental rights part in its relation to the State of Jammu Kashmir. The Constitutional (Application to Jammu and Kashmir) Order 1954 of 14 May 1954, which superseded Constitution (Application to Jammu and Kashmir) Order 1950 of 26 January 1950, was issued under the permissible limits of Article 370 — a temporary constitutional provision relating to the State of Jammu Kashmir. Article 370 authorizes the President of India to extend the provisions of the Constitution of India in its relation to the State of Jammu Kashmir as the President may by order specify. Article 370 (1) enjoins four clauses, viz., clauses (a), (b), (c) and (d). Article 370 (1) (a) reads as: “Notwithstanding standing anything in this Constitution, the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir”; Article 370 (b) reads as: “ 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 the 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; Article 370 (1) (c) reads: “the provisions of Article 1 and of this Article (370) shall apply in relation to that State”. Article 370(1)(d) reads: “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-section (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”.
Legal and Constitutional Construction of Articles 35A vis-à-vis Articles 370 and 368 both from legalese-imperative positivist to creative or pragmatic or realistic or relativist or social engineering interpretation perspectives
A plain reading of the language of Articles 370 and 368, both from legalese-imperative positivist as well as creative or pragmatic or realistic or relativist or social engineering interpretation, conclusively construes that it does not authorize the executive head of the Indian State, i.e., the President, to add by enacting any new provision in the text of the Constitution of India in its relation as well as application to the State of Jammu Kashmir. Of course, the President of India does not perform the constitutional functions entrusted to him himself rather acts with the aid and advise of the Council of Ministers headed by the Prime Minister of India, and as such, the text of the Constitution of India does not authorize the Council of Ministers to render such aid and advise to the President of India by adding any provision in the text of the Constitution of India in its relation and application to the State of Jammu Kashmir which is contrary to the constitutional permissibility. The constituent power to amend by way of addition, variation or repeal any provisions of the Constitution of India belongs to the Parliament under the umbrella of Article 368 and this power is an essential constituent function which cannot be effaced or abdicated or handed down to any other agency of the Government including the executive head of the Indian State — the President of India. Besides, the continuance retention of Article 238 in the textual language of Article 370 is itself ultra vires the basic structure of the Constitution of India because Article 238 stands repealed by the Constitution Seventh Amendment Act, 1956, by the enactment of Reorganization of States Act, 1956, which had done away with the nomenclature of Part A, Part B and Part C States. It seems a paradox! Further, the soup and sauce of the words ‘dominion of India’ and ‘dominion legislature’ could have been evaporated from the language of Article 370, because India and its Legislature are no more ‘dominion’ of any foreign agency or autochthony since India that is Bharat is the sovereign democratic republic from the adoption and enactment of the Constitution of India.
Constitutional (Application to Jammu and Kashmir) Order 1954 — The mother of Article 35A
Could the President step into the shoes of the Parliament while enacting Article 35-A through Constitutional (Application to Jammu and Kashmir) Order 1954? CO 1954 reads that after Article 35, the following new article shall be added, namely: 35A. Article 35-A reads:
“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 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”.
Analysis of Article 35A — Constitutional anomalies: a case for Constitutional Conviviality
The sole object of this new added Article 35A by the Presidential CO 1954 is to provide special rights and privileges to the permanent residents of Jammu Kashmir being citizens of India vis-à-vis the citizens of India, viz., employment in the State Government; acquisition of immovable property; settlement in the State; or scholarships and other forms of aid as per the discretion of the State Government. Article 35A makes a distinction between permanent residents of Jammu Kashmir as citizens of India and citizens of India not being permanent residents of Jammu Kashmir, and refugees from West Pakistan as citizens of India settled in Jammu Kashmir but not being permanent residents of the State of Jammu Kashmir. Both legalese-imperative positivist and creative or pragmatic or realistic or relativist or social engineering interpretation to the language of Article 35A leads to construe that permanent residents of the State of Jammu Kashmir being citizens of India enjoy special fundamental right and privileges within the State and also in any part of the territory of India; citizens of India not being permanent residents of the State enjoy fundamental rights in any part of the territory of India except the State of Jammu Kashmir; refugees from West Pakistan, settled in the State of Jammu Kashmir, not being permanent residents of the State of Jammu Kashmir but being the citizens of India do enjoy the fundamental rights in any part of the territory of India but are deprived to enjoy the rights and privileges within the State of Jammu Kashmir. The provisions of Indian citizenship enjoined in Articles 5 to 11 of Part II of the Constitution of India shall be deemed to have been in relation to the State of Jammu Kashmir as from the 26th day of January 1950 as per CO 1950 and reiterated in CO 1954. The provisions relating to Indian citizenship do not make any of the distinctions as enumerated above. Thus, the classification created by Article 35A suffers from the vice of “intelligible differentia”; this differentia is artificial as it has no rational nexus/relationship with the basic object of the Constitution equality. What is the status of West Pakistani refugees? Are they stateless persons? Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu Kashmir they are worst than stateless persons because they cannot enjoy the rights and privileges as being enjoyed by permanent residents of Jammu Kashmir. Their status is unequal amongst the equals. The basic aim and object of equality is rule against arbitrariness; arbitrariness and equality are sworn enemies to each other and do not see eye to eye each other. Equality is a means to achieve the ends of rule of law to serve the rule of life, which seems to be a naught in the case of refugees of West Pakistan settled in the State of Jammu Kashmir. Had they been settled in any part of the territory of India other than Jammu Kashmir, they ought not to have been the sufferers. In the background of this submission, it appears that Article 35A does not seem to be compatible with the basic feature of the Constitution of India.
The constitution Bench of the Supreme Court of India in Bachan Lal Kalgotra v. State of Jammu and Kashmir had lost the opportunity to explain the constitution truth of Article 35A. It seems that the Apex Court was in oscillation in handing down the correct judicial policy with regard to the interpretation of the language of Article 35A. The vacillation of judicial verdict is clear from the conclusions drawn in the said case which shows that they have “vast undone” approach to the interpretation of Article 35A; it also shows “willing to wound but afraid to hurt” judicial approach; it also unfolds, with due apologetic submission, that the judges of the higher court are right because they are superior, not superior because they are right. The chief contentions in the said case were that refugees from West Pakistan domiciled in Jammu Kashmir State for forty years (now about sixty five years) had been denied permanent resident status in the State of Jammu Kashmir and basic rights of citizenship as available to the permanent residents of Jammu Kashmir, right to acquire immovable property in the State, right to higher technical education and right to be elected to the State Assembly and local bodies. They had sought the permissibility under Article 35A read with section 6 of the Constitution of Jammu Kashmir thereof as permissible to the permanent residents of the State being the citizens of India. In the backdrop of the circumstances, the Apex Court, while dismissing the petition, explained its vacillation in these words:
In view of the peculiar Constitutional position obtaining in the State of Jammu and Kashmir, we do not see what possible relief we can give to the petitioner and those situate like him. All that we can say is that the position of the petitioner and those like him is anomalous and it is up to the Legislature of the State of Jammu and Kashmir to take action to amend legislature, such as, the Jammu and Kashmir Representation of the People Act, the Land Alienation Act, the Village Panchayat Act, etc. so as to make persons like the petitioner who have migrated from West Pakistan in 1947 and who have settled down in the State of Jammu and Kashmir since then, eligible to be included in the electoral roll, to acquire land, to be elected to the Panchayat, etc. This can be done by suitably amending the legislations without having to amend the Jammu and Kashmir Constitution. In regard to providing employment opportunities under the State Government, it can be done by the Government by amending the Jammu and Kashmir Civil Services, Classification of Control and Appeal Rules. In regard to admission to higher technical educational institutions also, the Government may make these persons eligible by issuing appropriate executive directions without even having to introduce any legislation. The petitioners haver a justifiable grievance. We are told that they constitute nearly seven to eight per cent of the population of the State of Jammu and Kashmir. In the peculiar context of the State of Jammu and Kashmir, the Union of India also owes an obligation to make some provision for the advancement of the cultural, economic and educational rights of those persons. We do hope that the claims of persons like the petitioner and others to exercise greater rights of citizenship will receive due consideration from the Union of India and the State of Jammu and Kashmir. We are, however, unable to give any relief to the petitioners.
A neat scanning of the judicial oscillating observation shows that how the refugees from West Pakistan domiciled in the State of Jammu Kashmir have been made hapless victims in their own soil which they own close to their heart and soul. What a paradox!
Had the Apex Court interpreted the language of Article 35A vis-à-vis Articles 370 and 368, not in the legalese-imperative positivist approach, in the creative or pragmatic or realistic or relativist or social engineering or integrationist perspective, there could not have been the vices of haplessness, constitutional permissibility, incompatibility with the basic feature, inequality, bad classification having no rational nexus with the object of the constitutional law sought to be achieved.
 The provisions of the Constitution of India in relation to the State of Jammu and Kashmir have been extended with such modifications and exceptions with the concurrence of the Government of the State by CO 1954, as amended by 1964, 1966, 1967, 1969, 1971, 1972, 1973, 1975, 1976, 1985, 1988 constitutional amendments.
 AIR 1987 SC 1169.