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Article 35 A: A Rejoinder To Arun Jaitley

Abdul Majid Zargar 30 Mar 2019
Through a written blog followed by his tweet, Union Finance Minster Mr. Arun Jailey has yet again stirred the issue of Article 35A due to be adjudicated by Supreme court any time now. His tweet on the issue reads as:
 “Chowkidar Arun Jaitley @arunjaitley



Article 35A surreptitiously inserted by Pt. Nehru’s govt. in the Constitution in 1954 vide Presidential order is responsible for discrimination by the J&K govt. between two categories of citizens on the basis of declaring some as permanent residents while leaving out the others.”
Before I join the issue on  legality or otherwse of Article 35A, let us try to read & analyze the motive behind Jaitley’s blog &  tweet:
 
  1. He has blamed Nehru Govt. for introduction of Article 35A in the Indian constitution .This is because of  his electoral compulsion as BJP is desperately in need of votes in the ensuing elections and ridiculing Nehru fetches them votes.
  2. Since the issue is likely to be heard anytime now by the supreme court, it is also aimed to influence the opinion of Hon’ble judges and to convey the court what the Govt. of the day expects from it.
  3. Removal of article will throw the various privileges enjoyed by state subjects to challenge in Indian courts which may ultimately open a road for Indians to acquire land & other immovable properties in J&K, thus ultimatelychanging its demographic character.

At the outset it must be stated that Article 35A doesn’t grant or confer any new or fresh rights  on the people of Kashmir .The article  only  restricts the Indian public to challenge their existing rights to immovable property & employment  within the state etc. These rights were conferred on them  in 1927 when Mahraja of Kashmir, in his wisdom, passed a law and granted  his subjects i.e the people of Kashmir these rights.  It needs to be appreciated that contemporary India was not even in existence then.
Be that as it may, let us flag the issues raised by Mr. Jaitley:
 
  1. That Article 35A was surreptitiously inserted in Constitution of India-By which he means that the said article was passed through a presidential order instead via  the Procedure prescribed in article 368 to amend or alter constitution of India.In his opinion, the parliament didn’t have an opportunity to discuss the article in great detail and Nehru Govt.
  2. That it is discriminatory

Let us take his allegations one by one.
As far as his contention that it was surreptitiously inserted without discussing it in Indian Parliament is concerned, Nehru’s following statement to Lok Sabha in 1954, pursuant to an animated discussion on the issue,  nails his lie;

“The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time past, in the Maharaja’s time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there. And that continues. And in the state subjects notification by the Maharaja, they defined four grades of subjects, Class number one, Class two, Class three and Class four. And unless you come in one of these classes, you just cannot acquire land there, or any immovable property. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sale qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Now they want to vary the old Maharaja’s laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. So far as we are concerned, I agree that under Article 19, clause (5), of our Constitution, we think it is clearly permissible both in regard to the existing law and any subsequent legislation”

Space doesn’t permit me to reproduce here three other statements/clarifications by Mr. Nehru to both houses of Parliament after sharp & probing  questions were raised on the issue by both treasury  & opposition benches. Mr. Jaitley will do well to dig into records of parliamentary proceedings to acquaint himself with the correct position. Suffice it to say here that this  article was discussed threadbare in both houses of Paliament and there is no substance in his allegation that it was introduced surreptitiously.

A question arises here as to what prevented Nehru to insert  the above article in constitution  through  the  procedure prescribed under article 368 instead of  a presidential  order 1954, which has now became a  bone of contention. The reply to this is provided in the then Attorney General M.C.Setalvad’s opinion, an eminent jurist, to whom the proposal was sent in the normal  course for his comments . His robust opinion & sound advice  was that since article 370 was already existing  in the constitution, it was neither possible nor desirable to insert article 35A via the procedure prescribed under article 368 but only through a presidential order as prescribed under article 370. Unfortunately the important file containing this opinion is now reported   missing from the safe vaults of Union home /LawMinistry- a phenomenon which occurs at regular intervals with this Govt.

Coming to the discrimination to women & non-state subjects  issue raised by Mr. Jaitley, Let it be made clear that as far as women are concerned, Article 35A is gender neutral & it doesn’t discriminate between men & women. It has also been made clear that a married state subject women doesn’t loose her status & property rights upon marrying a non state subject by virtue of J&K High Court  full bench decision  in  State of Jammu and Kashmir vs Dr Sushila Sawhney, which has attained a position of law in absence of any challenge.

As regards other sections of non state subjects like West Pakistani refugees, safai Karamcharis (Valmikis)  desirous to obtain state subject status , it is sufficient to quote here the relevant portion of the judgment of Supreme court in  Bachan Lal Kalgotra v. State of Jammu and Kashmir[ AIR 1987 SC 1169.]. The chief contention in the said case was that the refugees from West Pakistan who had migrated into the State of Jammu and Kashmir in 1947 are not permanent residents as defined in s.6 of the Jammu and Kashmir Constitution, with the result that they were disentitled to be included in the electoral rolls of the State Assembly or  to be appointed to any service under the State Government by direct recruitment or to purchase land in the State etc. etc. The petitioner had sought the conferment of all such benefits under Article 35A read with section 6 of the Constitution of Jammu Kashmir thereof as are allowed  to the permanent residents of the State . While dismissing the petition after dwelling at length on Article 35A , the Apex Court  held that 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. All that we can say is that it is up to the Legislature of the State of Jammu Kashmir to take action to amend various laws to accommodate the interests of West Pakistan refugees.

From the above it is clear that Mr. Jaitley’s  grounds of attack on article 35A are fallacious and erroneous made only  to mislead gullible Indian public  with a twin purpose of reaping electoral dividends & furthering the Hindutva agenda on Kashmir.

(The author is a practicing chartered Accountant. E mail: [email protected])

Courtesy: https://countercurrents.org/

 

Article 35 A: A Rejoinder To Arun Jaitley

Through a written blog followed by his tweet, Union Finance Minster Mr. Arun Jailey has yet again stirred the issue of Article 35A due to be adjudicated by Supreme court any time now. His tweet on the issue reads as:
 “Chowkidar Arun Jaitley @arunjaitley



Article 35A surreptitiously inserted by Pt. Nehru’s govt. in the Constitution in 1954 vide Presidential order is responsible for discrimination by the J&K govt. between two categories of citizens on the basis of declaring some as permanent residents while leaving out the others.”
Before I join the issue on  legality or otherwse of Article 35A, let us try to read & analyze the motive behind Jaitley’s blog &  tweet:
 
  1. He has blamed Nehru Govt. for introduction of Article 35A in the Indian constitution .This is because of  his electoral compulsion as BJP is desperately in need of votes in the ensuing elections and ridiculing Nehru fetches them votes.
  2. Since the issue is likely to be heard anytime now by the supreme court, it is also aimed to influence the opinion of Hon’ble judges and to convey the court what the Govt. of the day expects from it.
  3. Removal of article will throw the various privileges enjoyed by state subjects to challenge in Indian courts which may ultimately open a road for Indians to acquire land & other immovable properties in J&K, thus ultimatelychanging its demographic character.

At the outset it must be stated that Article 35A doesn’t grant or confer any new or fresh rights  on the people of Kashmir .The article  only  restricts the Indian public to challenge their existing rights to immovable property & employment  within the state etc. These rights were conferred on them  in 1927 when Mahraja of Kashmir, in his wisdom, passed a law and granted  his subjects i.e the people of Kashmir these rights.  It needs to be appreciated that contemporary India was not even in existence then.
Be that as it may, let us flag the issues raised by Mr. Jaitley:
 
  1. That Article 35A was surreptitiously inserted in Constitution of India-By which he means that the said article was passed through a presidential order instead via  the Procedure prescribed in article 368 to amend or alter constitution of India.In his opinion, the parliament didn’t have an opportunity to discuss the article in great detail and Nehru Govt.
  2. That it is discriminatory

Let us take his allegations one by one.
As far as his contention that it was surreptitiously inserted without discussing it in Indian Parliament is concerned, Nehru’s following statement to Lok Sabha in 1954, pursuant to an animated discussion on the issue,  nails his lie;

“The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time past, in the Maharaja’s time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there. And that continues. And in the state subjects notification by the Maharaja, they defined four grades of subjects, Class number one, Class two, Class three and Class four. And unless you come in one of these classes, you just cannot acquire land there, or any immovable property. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sale qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Now they want to vary the old Maharaja’s laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. So far as we are concerned, I agree that under Article 19, clause (5), of our Constitution, we think it is clearly permissible both in regard to the existing law and any subsequent legislation”

Space doesn’t permit me to reproduce here three other statements/clarifications by Mr. Nehru to both houses of Parliament after sharp & probing  questions were raised on the issue by both treasury  & opposition benches. Mr. Jaitley will do well to dig into records of parliamentary proceedings to acquaint himself with the correct position. Suffice it to say here that this  article was discussed threadbare in both houses of Paliament and there is no substance in his allegation that it was introduced surreptitiously.

A question arises here as to what prevented Nehru to insert  the above article in constitution  through  the  procedure prescribed under article 368 instead of  a presidential  order 1954, which has now became a  bone of contention. The reply to this is provided in the then Attorney General M.C.Setalvad’s opinion, an eminent jurist, to whom the proposal was sent in the normal  course for his comments . His robust opinion & sound advice  was that since article 370 was already existing  in the constitution, it was neither possible nor desirable to insert article 35A via the procedure prescribed under article 368 but only through a presidential order as prescribed under article 370. Unfortunately the important file containing this opinion is now reported   missing from the safe vaults of Union home /LawMinistry- a phenomenon which occurs at regular intervals with this Govt.

Coming to the discrimination to women & non-state subjects  issue raised by Mr. Jaitley, Let it be made clear that as far as women are concerned, Article 35A is gender neutral & it doesn’t discriminate between men & women. It has also been made clear that a married state subject women doesn’t loose her status & property rights upon marrying a non state subject by virtue of J&K High Court  full bench decision  in  State of Jammu and Kashmir vs Dr Sushila Sawhney, which has attained a position of law in absence of any challenge.

As regards other sections of non state subjects like West Pakistani refugees, safai Karamcharis (Valmikis)  desirous to obtain state subject status , it is sufficient to quote here the relevant portion of the judgment of Supreme court in  Bachan Lal Kalgotra v. State of Jammu and Kashmir[ AIR 1987 SC 1169.]. The chief contention in the said case was that the refugees from West Pakistan who had migrated into the State of Jammu and Kashmir in 1947 are not permanent residents as defined in s.6 of the Jammu and Kashmir Constitution, with the result that they were disentitled to be included in the electoral rolls of the State Assembly or  to be appointed to any service under the State Government by direct recruitment or to purchase land in the State etc. etc. The petitioner had sought the conferment of all such benefits under Article 35A read with section 6 of the Constitution of Jammu Kashmir thereof as are allowed  to the permanent residents of the State . While dismissing the petition after dwelling at length on Article 35A , the Apex Court  held that 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. All that we can say is that it is up to the Legislature of the State of Jammu Kashmir to take action to amend various laws to accommodate the interests of West Pakistan refugees.

From the above it is clear that Mr. Jaitley’s  grounds of attack on article 35A are fallacious and erroneous made only  to mislead gullible Indian public  with a twin purpose of reaping electoral dividends & furthering the Hindutva agenda on Kashmir.

(The author is a practicing chartered Accountant. E mail: [email protected])

Courtesy: https://countercurrents.org/

 

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