Article 35A inserted by Presidential Order, can be struck down

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Even as the new BJP government explores all options to bring an end to the brutal cage match taking place in Kashmir, with the setting up of a Delimitation Commission as one of the prongs available on the table to correct the regional disparity, it is actively taking a view on the contentious Article 35A which prevents mobility and greater integration with the Union of India.

In its election manifesto for the hustings that concluded recently, the BJP laid bare its thought process on the sensitive issue. The manifesto said: "In the last few years, we have made all necessary efforts to ensure peace in Jammu and Kashmir through decisive actions and a firm policy. We are committed to overcome all obstacles that come in the way of development and provide adequate financial resources to all the regions of the state. 

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"We reiterate our position since the time of the Jan Sangh to the abrogation of Article 370. We are committed to annulling Article 35A of the Constitution of India as the provision is discriminatory against non-permanent residents and women of Jammu and Kashmir. We believe that Article 35A is an obstacle in the development of the state. We will take all steps to ensure a safe and peaceful environment for all residents of the state. We will make all efforts to ensure the safe return of Kashmiri Pandits and we will provide financial assistance for the resettlement of refugees from West Pakistan, Pakistan-occupied Jammu and Kashmir (POJK) and Chhamb."

It is believed that several Kashmir experts familiar with the ongoing drift in the Valley have been used as a sounding board on this issue on Wednesday. While the Narendra Modi government failed to submit an affidavit stating its position on Article 35A in the Supreme Court, where a bunch of PILs have been pending since August 2014, two successive Attorneys General -- Mukul Rohatgi and K.K. Venugopal -- had sought successive extensions until Governor's rule was imposed in J&K in June 2018.

What then is this Article 35A which has everyone in a state of frenzy. Does it impact Kashmir Nationalism in any way? It is a provision incorporated in the Constitution, giving the J&K Legislature the right to decide who all are "permanent residents" of the state and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. 

The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

It was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the "state subjects" of Jammu and Kashmir.

The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain "exceptions and modifications" to the Constitution for the benefit of "state subjects" of Jammu and Kashmir. Ergo, Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the "permanent residents" of Jammu and Kashmir.

Significantly, the legislative or parliamentary route was bypassed with the Presidential Order which incorporated Article 35A into the Constitution. Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution. Which begs the question whether this Presidential Order overwrote the Constitution?

Since Article 35A was never debated and passed into law by Parliament, is it infructuous or null and void? A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs The President of India discusses the President's powers under Article 370 to "modify" the Constitution. Though the court observes that the President may modify an existing provision in the Constitution under Article 370, the judgment is silent as to whether the President can, without the Parliament's knowledge, introduce a new Article. This question thus remains open.

A writ petition filed by NGO We the Citizens challenges the validity of both Article 35A and Article 370. It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of Jammu and Kashmir was never accorded any special status in the Constitution. Article 370 was only a "temporary provision" to help bring normality in Jammu and Kashmir and strengthen democracy in that state, it contends.

The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution. The petition said Article 35A is against the "very spirit of oneness of India" as it creates a "class within a class of Indian citizens". Restricting citizens from other states from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.

In the long running history over this disputed Article 35A, there have been many twists and turns. Moreover, it is well-known that Rohingya illegals secured PRCs in Mehbooba Mufti's regime. In late November last year, the State Administrative Council (SAC) headed by Jammu & Kashmir Governor Satya Pal Malik repealed the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001, popularly known as the Roshni Act, because it had "failed to realise the desired objectives and there were also reports of misuse of some its provisions".

The Roshni Act envisaged the transfer of ownership rights of state land to its occupants, subject to the payment of a cost, as determined by the government. It was enacted by Chief Minister Farooq Abdullah's government, and it set 1990 as the cutoff for encroachment on state land. The government's target was to earn Rs 25,000 crore by transferring 20 lakh kanals of state land to existing occupants against payment at market rates.

The government said the revenue generated would be spent on commissioning hydroelectric power projects, hence the name "Roshni". The SAC has ordered cancellation of all pending applications seeking vesting of ownership rights of state lands to their occupants. However, cases where such rights have already been transferred will hold.

In 2005, Mufti Mohammad Sayeed's PDP-Congress government relaxed the cutoff year to 2004. During the tenure of Ghulam Nabi Azad, who replaced Sayeed as Chief Minister under a three-year rotation agreement, the cutoff was relaxed further to 2007. The government also gave ownership rights of agricultural land to farmers occupying it for free, charging them only Rs 100 per kanal as documentation fee.

Powerful vested interest hijacked the scheme. In 2014, a report by the Comptroller and Auditor General (CAG) estimated that against the targeted Rs 25,000 crore, only Rs 76 crore had been realised from the transfer of encroached land between 2007 and 2013, thus defeating the purpose of the legislation. The report blamed irregularities, including arbitrary reduction in prices fixed by a standing committee, and said this was done to benefit politicians and affluent people.

In February 2018, the PDP tried to unilaterally allow Gujjar-Bakarwal squatters on forest land to become de facto owners and ignored opposition from the BJP. In November 2018, the High Court restrained all beneficiaries of the Roshni scheme from selling or carrying out any other transaction in respect of the land transferred to them.

A second petition filed by Jammu and Kashmir native Charu Wali Khanna has challenged Article 35A for protecting certain provisions of the Jammu and Kashmir Constitution, which restrict the basic right to property if a native woman marries a man not holding a permanent resident certificate. "Her children are denied a permanent resident certificate, thereby considering them illegitimate," the petition said.

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