Author Name:   Tasaduq

Jammu & Kashmir has been claimed by India as an integral part of the Dominion of India based on Instrument of Accession entered by its ruler Maharaja Hari Singh on 26th October 1947 and subsequent ratification of that Instrument by the J&K Constituent Assembly on 5th November 1951.

Article 35A: Necessity but not Charity

“None can be free; all are up for sale;
homeless till doomsday, ruined forever on sale
Be it cattle or humans to be bought, all for sale;
their sons, daughters and progeny all for sale
The foreheads of grass blade and moon carry our stamp;
babies in the wombs of mothers carry our stamp. ”

Jammu & Kashmir has been claimed by India as an integral part of the Dominion of India based on Instrument of Accession entered by its ruler Maharaja Hari Singh on 26th October 1947 and subsequent ratification of that Instrument by the J&K Constituent Assembly on 5th November 1951. The vehicle required to transport the provisions of the Indian Constitution became a compulsive necessity and it germane in the form of Article 370. The Article 35A inserted in the Indian Constitution by The Presidential Order 1954 flows inexorably from the power given to the President under Article 370. Thus challenging Article 35A would mean challenging the only constitutional link between the state and the union. This paper traces the history of Article 35A, its legal mandate and other allied issues with respect to it.

To understand the in depths of Article 35A, it is indispensable to go into the historical retrospect of the said Article. Between 21st and 27th October 1947 Kashmir dispute evolved from a calm discussion at a diplomatic level into an armed conflict with all the passions at the peak. The so called tribal invasion, the legitimacy of which is still doubtful, compelled the Maharaja to execute the Instrument of Accession and sought military aid from India. Under these circumstances which a result were of political compulsion and indecisiveness of Maharaja. The state of J&K acceded to India on 29th October 1947. When the letter of conditional acceptance came from Mountbatten, who reiterated India’s earlier stand of giving the people of J&K an opportunity to determine their future. In 1947 when the constitution of India was being formulated it was made applicable to all the states which had agreed to be the part of the Union and merge with it. The state of J&K did not agree that the Constitution of India should be made applicable to it in the same manner as it was to the other states thus acknowledging the limited nature of accession. A special Article 370 was incorporated and therein, President is empowered to extend the provisions of Constitution to the state with such modifications and exceptions as he may notify. Article 35A, created under the Presidential Order of 1954 is the result of one such endeavor.

In 1952, the historic Delhi Agreement between Nehru and Sheikh contained 10 points one of which was that the state legislature would have the powers to regulate the rights and privileges of permanent residents or state subjects as defined in the 1927 State Order. It was agreed that in accordance with Article 5 of the Indian constitution persons who have their domicile in J&K shall be the citizens of J&K. It was further agreed 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 regards to the acquisition of immovable property. It was because of historical reasons that in late 1920s people agitated for the protection of their bonafide right against superior competing interest of the non-residents of the state. It was in response of the popular demand that the government of the day promulgated notification of 1927, on the instance of Kashmiri Pandits who feared influx from Punjab. Therefore a strict definition of the term “State Subjects” was provided.

The question that arises now is whether the instrument of Accession was penultimate legal document authorized by international laws, genuine in its content and substance and executed in its true spirit and for to culminate it in accession of Kashmir with India? The outcome of the state makes the case that instrument of accession was legally flawed, didn’t have a permanent character to set in concrete the future of Kashmir as integral part of India.

One sound reason to doubt could be the speed at which the events unfolded. It appears as if the script of the drama on the 27th October 1947 was written for in advance and details worked out with precision tools because there is an ongoing debate about the legitimacy of the Instrument of Accession concluded by Maharaja with India (Alastair Lamb in Kashmir: The Disputed Legacy). One of the important points that will strike and observer is that for a treaty to ascribe the future of the millions of people the Accession process was structured in an indeterminate manner and the very binding law in the instrument was inchoate. If the Maharaja did sign the piece of paper of Accession in order to save his life, his throne, his country or his people, then it was a consummate illusion because none of those goals were actually realized.

On 15th August 1947 the State of J&K began to all its intents and purposes an independent state. The state of J&K was headed by indecisive Maharaja who till 26 October 1947, i.e., the day when the instrument of conditional accession was signed, was unsure about his choice relating to political fate of the state. By the Instrument of Accession the Maharaja of J&K accepted three subjects as ones on which the dominion legislature “may make laws for the state” and they were Defense, External Affairs and Communication. Clause 7 of the Instrument read “nothing in the instrument shall be deemed to commit me in any way to the acceptance of any future constitution of India or fetter my discretion to enter into arrangement with the government under any such future constitution.” Since the Delhi agreement was followed by the Constitution (Application to J&K) Order 1954 on May 14 1954.Its preamble says that it was made “with the concurrence of the government of J&K”. Once the Constituent assembly was convened the State government lost the power to accord any such concurrence.

The Order of 1954 made serious deviations and altered the existing position of the state significantly. The death of Constituent Assembly followed with itself the power of it being altered by any other authority, meaning thereby, it is not only 35A bit all the extension Orders which cannot be scrapped by President because of non-existence of the ratifying authority and hence for any such step the requirement will be that of the formation of new constitution which for sure will be something called extra constitutional measure and would in turn mean the death of the existing constitution that will ultimately take the state back to the position it had been in pre 1947.

The constitutionality of Article 35A may be challenge on two grounds: first that its very incorporation in the constitution was unconstitutional and thus questioning the entire scheme laid down under Article 370, implicitly questioning the constitutional bridge between the state and the Union? Second, it provides special privileges to the subjects of a particular state?
There should be no two ways about the fact that Article 370 is the part of Indian Constitution as it was enacted on 26 November1949 and Article 35A inexorably flows from the power given to the President under the aforesaid Article. It is now 51 years old trite law and only sanctifies the Maharaja’s Notification of 20 April 1927 which defines state subject and their right to hold the property. Article 6 of the Constitution of J&K puts its seal on that notification. Pertinent to mention that Constitution Application Order of 1954 is an offshoot of the mechanism provided under 370 for making the working of the constitutional relationship between the state and the centre possible. The Drafting Committee presented its report to the J&K Constituent Assembly on 11 February 1954 which recommended certain amendments to the Constitution of India in its application to J&K. Article 35A was one of them. The report was adopted by the Constituent Assembly of the state and the amendment was incorporated by the Presidential Order of 1954. The recent judgement of J&K High Court on 16 July 2015 regarding SARFAESI Act is of historic significance for its cogent analysis of Article 370 and 35A. The court while taking a recall of the constitutional history from the time of Maharaja held “Parliament had no legislative competence to make laws in respect of J&K, which would affect the interest of the state subjects of the state defined by Section 6 of the J&K Constitution qua their immovable property.” The Court observed that the constitution of J&K is sovereign in character, and the state assembly exercises sovereign power to legislate laws. In the community of the states in India, in view of the law laid down by the honorable Supreme Court, the State of J&K occupies a distinct, unique and special position. Thus, in law the state of J&K constitute a class in itself and cannot be compared to the other states. So Article 35A is based on solemn pact between the Union and the State and is a result of mechanism which the Constitution itself provides to overcome the constitutional deficiencies created by the conditional accession of the state and therefore cannot be unilaterally altered.

Endnotes:
Written by: Tasaduq Suhail and Hafsa Khan - Students of Law B.A.LL.B (Hon’s) 4th Year, University of Kashmir - Ph no: 919596245024
[1] ‘Pachathar Lakh Ki Sale’ by Hafiz Jalandari-Quoted by Noorani in ‘The Kashmir Dispute-1947-2012’

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