In a few days from now, the Supreme Court will begin hearing a bunch of petitions that seek to abolish Article 35A of the Constitution. It is one the most important cases to come up before the apex court in independent India’s history, and its outcome will have far-reaching consequences. Already, political battle lines have been drawn, in favour of and against the provision’s continuation. And expectedly so, since the subject is the State of Jammu & Kashmir.
The trickiness of the issue can be understood from the fact that the Union Government has so far refused to file a counter affidavit in the court, either supporting the petitioners or opposing their demand. The Centre appears to have taken the middle ground, stating that since it had no opinion on the matter, it would abide by the court’s order. On the other hand, not just the separatists but also mainstream political parties in the State have vehemently opposed any move to scrap the constitutional provision. The two main regional parties, National Conference and the Peoples democratic Party, have even warned the Modi Government that there would be ‘no one left to carry the Indian Tricolour’ in Jammu & Kashmir if Article 35A was abolished. Their threat, even if abominable, is along expected lines. What is disappointing is that the BJP-led regime, given the Bharatiya Janata Party’s historical opposition to provisions that seek to differentiate J & K from the rest of India, should remain ambivalent. Perhaps it may change its stand as the case progresses — one hopes that it happens.
Article 35A is no ordinary provision. It was not part of the draft Constitution that the drafting committee headed by BR Ambedkar had finalised, which as later discussed threadbare in the Constituent Assembly of India and amended as per the wishes of the majority of members, and finally adopted as the final Constitution of India. Article 35A came by way of a Presidential Order, named the Constitution (Application to Jammu & Kashmir) Order, 1954. It flows directly from Article 370. Incidentally, Ambedkar had refused to draft Article 370, although Jawaharlal Nehru had asked Sheikh Abdullah to consult Ambedkar on the matter. It was eventually drafted by Gopalaswami Ayyangar, whom Nehru had appointed as his point-man — a decision that had been objected to by Vallabhbhai Patel, and so strenuously that Sardar Patel even offered to quit the Cabinet in protest.
There is no doubt that Article 35A is discriminatory — for politicians in the State, more precisely those who have their base in Kashmir, it is ‘positive discrimination’. The most prominent feature of the provision is that it provides for special treatment to ‘permanent residents’ of the State. Thus, we have two kinds of citizenships in one country: Whereas all citizens of India are by extension citizens of any State in the Indian Union, the same is not the case with J & K. Here, the existing law of the State determines a permanent resident, and gives such a resident State privileges in matters of employment, education, acquisition of immovable property, settlement in the State, and scholarships and other benefits that the State regime extends. Those Indian citizens that are not ‘permanent residents’ but live in J & K, cannot even vote in local body elections, though they can do so for Lok Sabha polls. They cannot buy immovable property, their children do not get admitted to Government schools or avail of various State incentives in education etc.
The Article makes it clear that no law hereafter defining the class of persons who are or shall be permanent residents of the State of Jammu and Kashmir, or (an law) conferring special rights and privileges on such permanent residents, “shall be void on the ground on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India…”
It is these explanations that give confidence to the pro-Article 35A lobby. However, the petitioners have based their pleas on various strong grounds, technical and fundamental, while challenging the validity of the provision. We the Citizens, an NGO which is the main petitioner, has argued that the Constitution cannot be amended through a Presidential Order; that Article 35A never was presented to Parliament; that it came into effect immediately without any discussion held in the House; and that it was supposed to be a temporary provision. Lawyer and former member of the National Commission for Women, Charu Walia Khanna, whose plea is part of the bunch of petitions which is to be heard by the apex court, has challenged the J & K regime’s decision to not accept her as a resident of the State, although she had “anecdotal evidence” that she is originally from Kashmir and that her family had left the State some 200 years ago. She, along with another petitioner, Seema Razdan Bhargav, has challenged Article 35A on grounds of “blatant gender discrimination”.
We, thus, have three issues: Gender discrimination, discrimination between one Indian citizen and another, as well as the question of constitutional validity of a Presidential Order finding its way into the Constitution. In case the challenge to Article 35A were to succeed in all aspects that the petitioners have raised, it would be a major victory for campaigners of gender equality. But equally importantly, the verdict would cast a shadow on the more than 40 Presidential Orders which followed the one resulting in Article 35A — since all the subsequent Orders were essentially amendments to the 1954 order.