Diagnosis of Article 35-A, confusion, disinformation

By Bhim Singh

This is unfortunate and sad that media has been pushing through interpretations coining its own definition some of which are totally contrary to the facts, history and Constitutional Law. The Article 35-A is machinism of the Congress Govt., the then Prime Minister of J&K Bakshi Gulam Mohd. only to perpetuate dictatorship of so-called ‘imposed’ rulers.

There are basic differences between application of the Fundamental Rights to the citizens of India as compared to their application in respect of citizens of India who stand defined by the Constitution of J&K as ‘Permanent Citizens’.

Since J&K was not merged into the Union of India by the Constituent Assembly of India, the State of J&K was allowed by the Constituent Assembly of India as a ‘Monarchy State’ under its, the then, Ruler Maharaja Hari Singh. On January 26, 1950 J&K was introduced into the Union of India by introducing a separate, though, temporary Article styled as temporary provision—370. Who is to be blamed? This is not an important subject today.

The subject today before the citizens of India including the Permanent Residents in J&K (defined as citizens of India in the Indian Constitution) is that what is the space of the Fundamental Rights for the citizens of India (Permanent Residents in J&K)? Monarchy was abolished by a simple resolution of the so-called Constituent Assembly of J&K in 1952. Dr. Karan Singh was elected as the Head of the State (Sadar-e-Riyasat) by the Members of the Constituent Assembly. He was replaced by a Governor in 1964.

The important issue is that if the residents of J&K (the definition of State Subjects was introduced as Permanent Residents). J&K framed its own Constitution which was promulgated on January 26, 1957. In J&K Constitution, there is no chapter even a ‘touch’ regarding the Fundamental Rights to the Permanent Residents of the State. Article 370 allowed the Monarchy to continue which was terminated through a declaration of the so-called Constituent Assembly, J&K under the leadership of Sheikh Mohd. Abdullah in 1952.

The most difficult question was about the civil and political rights of the Permanent Residents of J&K which got its own Constitution in 1957. J&K has worked out its own Constitution in 1939 under the leadership of Maharaja Hari Singh. It was that reason that Maharaja Hari Singh was permitted to continue as the Ruler of the State by the Constituent Assembly of India. The important law which was introduced by the Ruler of J&K in 1927 had introduced doctrine of State Subject. The State had enacted the law at that time to ensure that no outsider shall  acquire or own any immovable property in J&K.

Maharaja Hari Singh brought this law to protect the property of J&K from the outsiders. Most of the British Nationals at that time were interested to purchase immovable property, particularly, land in J&K and settle there. Maharaja Hari Singh made this law to save the immovable property in J&K from the outsiders. This law made got full protection from the Constitution of India which made it very clear that the local laws in respect of the welfare of the people shall not be affected. It was for this reason that word ‘State Subject’ was replaced as Permanent Resident.

A permanent resident in J&K has an exclusive right over his immovable property. According to the law made by the Maharaja no outsider is allowed to purchase any immovable property in J&K. This continues a basic and fundamental  right of the ‘Permanent Residents’ of J&K. This right was recognised by the Constituent Assembly of India also. No law in the country allows outsiders to purchase the immovable property in J&K. This law has nothing to do with Article 35(A).

Coming to the present State of Affairs it is important that many political groups, individuals, historians are floating their own interpretations on the scope and application of Article 35(A). How 35(A) was added to Article 35. What were the circumstances at that time and which was the leadership of the country? These factors deserve to be studied in depth.

In 1953 the situation in J&K took a different turn when two great friends Pt. Jawaharlal Nehru and Sheikh Mohd.Abdullah turned hostile for the reasons need not to be recorded in this chapter. Interestingly, J&K was headed by an elected Sadar-e-Riyasat known as Yuvraj Karan Singh. Under the instructions/advise of Pt. Jawaharlal Nehru the Sadar-e-Riyasat of the State, Dr. Karan Singh dismissed the Sheikh Abdullah’s government. Detained Sheikh Abdullah in jail who faced trial for more than 10 years for hatching so-called conspiracy against the state.

Sheikh Abdullah’s Constituent Assembly which he was heading was taken over by his successor Bakshi Ghulam Mohd. who was appointed a Prime Minister of the State by Pt. Jawaharlal Nehru. It was at the state that Sheikh Abdullah’s friends and supporters managed to engage a British Lawyer, Mr. Dingle Foot who argued for Sheikh Abdullah in a special court set up at Canal Road, Jammu. The argument raised by Mr. Dingle Foot was simple that Sheikh Abdullah was an Indian citizen. Under the Constitution of India in its Chapter-III all Fundamental Rights were applicable to the permanent residents of J&K as J&K has been made an integral part of India.

His arguments scared the Nehru Advisors, because, under the Fundamental Rights no person could have been detained for  more than three months without trial. Therefore, he sounded that Sheikh Abdullah could not be detained in prison beyond three months because Fundamental Rights detailed in the Constitution of India were applicable to Sheikh Abdullah also as every State Subject had become a citizen of India. This situation was responsible for turning the history of J&K towards misfortune and multiple tragedies. There was only one way to come out of this situation and international embarrassment that the scope of Fundamental Rights should be curbed for the Permanent Residents of J&K.

The Prime Minister of India sent a letter to the President of India, Dr. Rajendra Prasad seeking his urgent intervention to authorize/issue ordinance the Govt. of J&K to make any provision in the State Laws to curbe any privilege or any guarantee ensured under the Fundamental Rights enshrined in the Constitution of India.The ordinance of the President could not extend for more than six months. This subject was not covered by Article 370. The President has no power to do that.

The Article 35(A) has been used though it lost it authority in 1955. The Govt. of J&K came out with new detention laws and detention of Sheikh Abdullah continued for 11 years. Even today J&K has separate detention laws called ‘Public Safety Act’ which was passed by the Assembly of J&K in 1978 when Sheikh Mohd. Abdullah himself was the Chief Minister. I would like to mention that I as an MLA of the Congress Party at that time was the first one to be detained in J&K Public Safety Act in 1978. It was Supreme Court which had quashed this order.

The situation in J&K was different and is different even today. I would like to bring it to the notice of the intellectuals, thinkers, statesmen, parliamentarians and particularly the writers and journalists, say media persons, that we must understand the entire sociopolitical situation in J&K before floating stories. I was shocked to know that some of the legal representatives of the different governments even that of the State of J&K and the Central Govt. have been arguing on the subject without knowing the subject. It must have been understood that no power on earth nor even the Parliament or Govt. of India can change the characteristics of the Fundamental Rights in Chapter-III. That Article 35(A) inserted by the President of India in 1954 was contrary to the law and even violative of the command of the Chapter on Fundamental Rights.

From where President of India had drawn his power to amend a provision of Fundamental Rights in 1954. Was it supported or carried or even discussed/debated by the Parliament of India ever since 1954?. I wondered the wisdom of our great parliamentarians about their silence on the legal validity/credibility of this draconian amendment in Article 35 which had guaranteed that no provision in Chapter-III in the Indian Constitution could be changed/amended without a procedure clearly described in Article 368 of the Indian Constitution. Yes the Fundamental Rights in J&K or any provision in the Constitution shall override the subject like State Subject/Permanent Resident in J&K which was promulgated by the Ruler of J&K in 1927.

I wonder on the silence of the prominent law makers and the media persons that they are keeping silent on the so-called effects of Article 35(A) in respect of employment, acquisition of immovable property in the state or settlement in the state. This nowhere has dictated that the Fundamental Rights of the Permanent Residents of J&K shall stand scuttled in the absence of Article 35(A). The President of India had/has no power to amend/change any provision in the Constitution particularly contained in Chapter-III of the Indian Constitution on Fundamental Rights. Article 35(A) has no relationship and no relevance with Article 370 of Indian Constitution, although Article 370 is a temporary provision which has been going on for 70 years.

They are different subjects all together. The President of India had no constitutional power provided in the Constitution itself to change even, in any Article. The only way out is that Parliament of India should not wait for the Supreme Court judges or for the media to announce or pronounce their judgments. Let Parliament of India come forward to ensure that National Integration is strengthened with assurances that all the previous laws made by respective states in India before 1947 shall not be discouraged. That is assured the Constitution. The Permanent Residents of J&K deserve all Fundamental Rights enshrined in the Indian Constitution with guaranteed assurances that the protection given by the Constitution of India on the status of Permanent Residents shall remain intact and secure as has been assured in Article 11 to Article 13 of the Indian Constitution.

Article 35(A) reverses the guarantees assured in Article 35 itself. Yet it (35-A) does not tamper with the Fundamental Rights. It only vests the dictatorial power in the rulers of J&K. It is because of this authoritarian power vested in J&K by Article 35(A) that thousands of our youth have been lodged in jails. I, myself, have remained under draconian detention law made by J&K Rulers for years. I was awarded Rs.50,000/- compensation by the Supreme Court on my illegal arrest and detention in 1984 when I was Panthers MLA. In 2007, the Supreme Court granted compensation of Rs.2 lacs to Ms. Anita Thakur and Rs.1 lac to Mr. P.K. Ganjoo & Mr. H.C. Jalmeria Advocate each for their illegal detention and assault. This is the dictatorial power vested in J&K Govt. by Article 35(A).

(Bhim Singh is Sr. Advocate of Supreme Court of India and Chief Patron, National Panthers Party)