My rebuttal to Anand Sahay's article in ET on Article 35(A)

The Op-Ed by Mr. Anand Sahay in ET dated 31^st October, ironically on the birthday of Sardar Patel, the unifier of the nation, opens with a dire warning - Don't invite chaos, or worse, to valley by removing Article 35A. From there on, the article goes on to make many misleading statements accession of J&K and about various laws applicable to J&K. The whole article is so full of holes that one doesn’t know how can one cover oneself with so much of falsehood.

His advice to judiciary not to look at Article 35A is not based on any legal position but on pernicious grounds that the matter is being raised by RSS or people inspired by RSS.  Mr. Sahay doesn’t even once admit that Article 35A was never presented in Parliament for approval though it was an amendment to the Indian Constitution. It was inserted into Annexure of the Constitution in 1954 by directive of the President, who did it, presumably, at the behest of the then Prime Minister Mr. Nehru. We have no clue why the upright President blinked. But, the fact remains that it was unconstitutional amendment. This legality is being challenged in the Courts, not the Article. Cleverly, it was not inserted below Article 35 but put into Annexure and that is where it is all these years. Such an important article that according to Mr. Sahay holds J&K together was unknown to most legal luminaries including the famous Interlocuters’ team appointed by UPA. It was never brought up even once in their report though the report mentioned 370 as the centre piece of the Kashmir strategy. Article 35 provides for powers of Parliament to protect fundamental rights. Article 35A went against this very spirit of Article 35.

Article 5 of Indian Constitution confers citizenship on all citizens of India, including J&K; and  subjects of J&K became Citizens of India as per this law when J&K became part of the Indian Dominion. It is a singular citizenship. If we go by Mr. Sahay’s legal argument, citizens of J&K were ‘stateless citizens’ till 1954 when 35A was inserted!  The plain fact is that Citizenship is not governed by the Instrument of Accession not Article 370 or 35A. 

Anand Sahay’s contention that Article 35A "confers Indian citizenship on J&K’s ‘state subjects’ is totally false, to be polite. He hasn’t read either J&K Constitution or the Indian Constitution. 35A talks of conferring PRC (Permanent Resident Citizen) which can be given only to an Indian citizen as defined above article. Thus, his farcical statement that "If Article 35A goes, the people of Jammu, Kashmir and Ladakh will cease to be citizens of India" is carrying his imaginary legal acumen too far. 

Mr. Sahay goes onto to claim that “In real terms, Article 35A is a sub-set of Article 370 under the Constitution of India, under which Maharaja Hari Singh.. acceded to India.”  To refresh the memory of citizens of India, Instrument of Accession  was signed in October 1947, while Article 370 was inserted in 1950 as a temporary provision to extend Indian Union’s constitution in the State of J&K. Article 35A was slipped in surreptitiously in 1954 as noted above.  I fail to understand how Mr. Sahay grandly tells us that all these are subsets of each other. Accession was as per Indian Independence Act and as per Government of India Act amended in 1947, and applied to all the princely states uniformly. There are no exemptions.

To clarify the unconditional nature of accession, let me quote Justice Mehrchand Mahajan, the Prime Minister of J&K and was later Chief Justice of India, “Since both Pakistan and India were Dominions, they had no  right to put any conditions in the instrument of accession, as that would be ultra vires. They could either accept a princely state offer or reject it.” He then went onto say that even India’s rush to UN Security Council was bad in law nor was Council entitled to pass the resolution it did.  Further, once the legally constituted Constituent Assembly confirmed the accession to India in February 1954, the matter was sealed. No doubts left, none need be entertained. 

To clarify the confusion created by Mr. Sahay, let us read Preamble, Section 3 and 147 of J&K State Constitution -  (b). Preamble (Jammu Kashmir Constitution) -We, the people of the State of Jammu and Kashmir, having solemnly resolved, in the presence of the accession of this State of India, which took place on 26th day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part of India as an integral part thereof, and to secure to ourselves:-

Note that Article 370 has not been mentioned there. So connecting Article 370 with Accession is baseless.

Section-3 J&K Constitution also clear states - Relationship of the State with the Union of India: The State of Jammu and Kashmir is and shall be an integral part of the Union of India. 

In case Article 370 is abrogated, even then Article-1 of Indian Constitution  and Section-3 of J&K Constitution (Relationship of the State with the Union of India that says that the State of Jammu and Kashmir is and shall be an integral part of the Union of India) stays. J&K Assembly cannot amend Section-3 of J&K Constitution as has been clearly laid in Section-147 of J&K Constitution. Further, we know that on Article 370, Indian Constitution clearly states that it is 'temporary' law.

Let us not forget that J&K Resettlement Act, 1982 is the worst piece of legislation on Citizens’ Rights. Coming to greatness of 35A it is obnoxiously Anti-Women.  Even after it was rejected by the High Court, the new law remained highly discriminatory against women. For example, a woman married to a non-Citizen of J&K cannot bequeath her assets to her children; and her spouse doesn’t become a citizen of J&K. But, a non-citizen woman  marrying a local man becomes a full fledged citizen of J&K and her children get all the rights!

One of the most horrible and cringe worthy clause in 35A is that a son of SC conservancy staff who were brought into J&K in 1956, can only become only a ‘Safai karmachari’, nothing more even if he becomes highly qualified! You, thus, block all avenues of a dispossessed citizen constitutionally! But our progressive liberals will never speak about this state sponsored atrocity. 35A is not even a bridge or a continuity between Maharaja’s Constitution State subject law. Maharaja’s laws were very progressive. They had some space for a long time resident (with ijazat nama and raiyatnama) who was an asset to the state to be granted PRC. Maharaja also gave right to business and industry to buy land and also get PRC. But, 35A leaves no door open for deserving persons, it is a blanket ban for every outsider.

Look at the irony of it all, a refugee from Lyllpur landed up in Punjab and went onto become one of the longest serving PM of India, while others from the same area who by quirk of destiny landed up in Jammu are homeless, bereft of any rights and securities of being a citizen of J&K though they are rotting in the open for last 70 years. Not one or two, but 2.5 lac unfortunate human beings. Their sin is they are Hindus, that too majority of them SC/OBC. This also reminds me that there are no political ST reservations in J&K, courtesy Article 370. Though there are about 12% ST brethren. 

Even 73^rd amendment of Panchayati Raj  is not implemented. And we are talking of ‘enlightened’ state leadership through the glasses of 370 and 35A etc.

All these dire warnings about ‘anjaam theek nahi hoga’ etc come for people residing in 5 of the 10 districts of Kashmir valley. Has  any champion of 35A or 370 or Kashmiriyat ever met 50%  of non-Sunni Muslims like Shias, Bakarwals, Pahadis, Gujjars, Sikhs, Buddhists, Hindus etc. to understand the pain of discrimination they face – political as well as economic?

Lastly, I request all the opinion leaders not to mislead people with falsehoods and misrepresentations when separatists and terrorists have been decisively squeezed and nearly crushed. Jammu & Kashmir is on the thin edge of the wedge. On one side is elusive peace and on the other is abyss of continuous strife. You may not the present government or you may treat RSS as untouchable, but we all should have national interest at heart.

-          Ratan Sharda

31^st October, 2017

(First published in Economic Times)
https://economictimes.indiatimes.com/news/politics-and-nation/view-dont-mislead-people-over-article-35a-even-if-rss-has-raised-the-issue/articleshow/61427688.cms