SC views about J&K Constitution
By Sant Kumar Sharma
It is often argued that certain things which we witness in the state of Jammu and Kashmir happen because it has a separate constitution. This separate constitution is the reason and fountainhead of what may seem to some of us as aberrations, or outright unconstitutional.
Article 370 and Article 35-A of the Constitution of India are entwined with the constitution of Jammu and. These are articles of the Indian Constitution but the Constitution of Jammu and Kashmir traces its genesis from these articles. It is these articles of the Indian Constitution that enable Jammu and Kashmir to have a separate constitution.
We all know by that more than one narrative is prevalent around these articles, Article 370 as also Article 35-A. Different narratives abound around these controversial articles and so often impossible to reconcile.
It needs to be stressed that Article 35-A is an article of the Indian Constitution and not of the Jammu and Kashmir Constitution. It is an article added to the Constitution of India through a Presidential order on May 14, 1954. This means that when the Constitution of India became applicable throughout the country on January 26, 1950, there was no Article 35-A.
It didn't exist ab initio in the Constitution and was not drafted, discussed or added to the Constitution by the members of the Constitution Assembly. Stalwarts like Dr Rajendra Prasad, Jawahar Lal Nehru and others of their standing and vintage discussed the various provisions of the Constitution more than once.
Each clause and section of the Constitution was subjected to scrutiny, rather intense scrutiny. It was only after rigorous scrutiny from the members, many of whom were considered legal eagles of the day, that anything was included in draft.
Contrast that with the manner in which Article 35-A has been included in the Constitution. Without any debate, without any discussions, without its draft being vetted by Parliament, and sneaking it in surreptitiously through a Presidential order. Parliament was kept in the dark about its contents and no members were provided any details.
Further, to apparently keep it away from prying eyes, it was put away in the Appendix I, and not the main body of the Constitution. Articles dealing with the Fundamental Rights are crucial and they are all placed in the beginning of the Constitution in Part III.
Article 35 is the last article in Part III and obviously the most suitable place for the placement of Article 35-A would be next to Article 35. So that when one is looking for it, one usually will look for it between Article 35 and Article 36.
It doesn't appear there as it had not been placed there after May 14, 1954, by those who inserted it in the Constitution through a Presidential order. It is a unique placement for an article to be kept in an appendix and this article is to be found in Appendix I.
Incidentally, Right to Education (RTE) was added to Constitution some years ago as Article 21-A. There is nothing unusual about its placement in the Constitution as it has been put in between Article 21 and Article 22. The sequence is what common sense and convention dictates. Not so for Article 35-A.
(After May 14, 1954, when was the next edition of the Constitution published? How many editions of the Constitution had been published between the first maiden draft and this date?)
There's something unique about Article 35-A in that it is an article of the Constitution of India but allows changes in the Constitution of J&K. Under Article 35-A, the Legislature of Jammu and Kashmir is given powers to decide the definition of Permanent Residents of Jammu and Kashmir.
The Legislature of Jammu and Kashmir can not only define who constitute the Permanent Residents but also codify their rights and privileges. It needs to be pointed out here that only the Indian citizens can be Permanent Residents. A citizen of any other country is not eligible to be conferred the rights and privileges of the Permanent Residents.
The point about Indian citizenship being a prerequisite for being Permanent Residents will be explained in some detail again. Elsewhere while dealing with the subject.
It needs to be pointed out that there is considerable confusion regarding the state of Jammu and Kashmir having a separate Constitution. A separate Consultation, other than the Indian Constitution, is prevalent in the state. This is unique in that no other state has a separate constitution and it is the Indian Constitution alone which prevails in all states other than Jammu and Kashmir.
So what is the status of the Indian Constitution in Jammu and Kashmir? Does it apply in Jammu and Kashmir? Or is it only the Constitution of Jammu and Kashmir which holds ground in the state?
Let us be clear about some basics here and that will help. First and foremost thing is to understand that the Indian Constitution is very much applicable in Jammu and Kashmir. Besides, the Constitution of Jammu and Kashmir also applies to the state.
For further clarification on the questions regarding two constitutions being applicable in the state, let us make it clear that all Permanent Residents of Jammu and Kashmir travel abroad on Indian passports. That means that the status of Permanent Residents is not akin to citizenship. Since India doesn't follow dual citizenship, the Permanent Residents of the state are not citizens of the state as also the citizens of India. They all are Indian citizens only and the Permanent Resident status defines their domicile status, not citizenry.
For a very long time, there was confusion and in fact even at present, there is considerable confusion regarding the provisions of the Jammu and Kashmir Constitution. As to how does it impact the Indian citizens who are not Permanent Residents of Jammu and Kashmir. As also what special rights and privileges it confers on the Permanent Residents.
There are also questions regarding which of the two constitutions, Indian and the J&K Constitution, will prevail in case a situation arises where their provisions clash. For too long, an impression has gone around that since the state has a separate constitution, it will hold sway. As opposed to the Indian Constitution.
Nothing can be farther from the truth and misleading. The Constitution of Jammu and Kashmir occupies only a subsidiary position vis a vis the Indian Constitution which is supreme. Nothing in the Constitution of Jammu and Kashmir existing now or done in future which runs contrary to the Indian Constitution can survive.
Nothing existing in the Constitution of Jammu and Kashmir, or anything that may be inserted by the Legislature in future, which is contrary to the Indian Constitution, is legal or correct. The touchstone and the rigeur for any provision of the Jammu and Kashmir Constitution is the Indian Constitution.
Anything in existence at present in the Constitution of Jammu and Kashmir, or anything done in future, has to be in conformity with the Indian Constitution. Anything contrary to provisions of the Indian Constitution is invalid and liable to be struck down as ultra vires.
The relationship and position of the Indian Constitution and the Jammu and Kashmir Constitution has been made clear by the courts, including the Supreme Court of India, in various judgements. The Supreme Court has declared categorically that the Constitution of Jammu and Kashmir is not sovereign and draws its powers from the Indian Constitution.
The Supreme Court has declared that the Jammu and Kashmir Constitution is only a subsidiary document. In every sense of the word, it is at a lower pedestal than that occupied by the Indian Constitution which is supreme.
The most recent verdict regarding the position of the two constitutions was delivered by the Supreme Court in the case of State Bank of India & Ors. (Appellants) versus Zaffar Ullah and another (Respondents). The judgment was written by Justice R.F. Nariman on behalf of a Double Bench in which the other judge was Justice Kurian Joseph. This case is popularly known as the Surfesi Act verdict and helps us understand things better.
The Bench categorically declared that ''the state of Jammu and Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India.''
The Bench held that it was ''wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and distinct class in themselves''.
The Bench said in its verdict: The Constitution of India is a mosaic drawn from the experience of nations worldwide. The federal structure of this Constitution is largely reflected in Part XI which is largely drawn from the Government of India Act, 1935. The State of Jammu & Kashmir is a part of this federal structure. Due to historical reasons, it is a State which is accorded special treatment within the framework of the Constitution of India. This case is all about the State of Jammu & Kashmir vis a vis the Union of India, in so far as legislative relations between the two are concerned.
The case came before the Supreme Court as a challenge to a verdict of the J&K High Court. The high court had held that it was beyond the legislative competence of Parliament to legislate on certain issues as the Constitution of J&K was sovereign.
This was struck down by the Supreme Court as erroneous and it remarked: We have been constrained to observe this because in at least three places, the high court has gone out of its way to refer to a sovereignty that does not exist.
The verdict says: Shri Vijay Hansaria, learned senior advocate, appearing on behalf of the private respondent, has argued that since both the Constitution of India and the Constitution of Jammu and Kashmir are expressions of the sovereign will of the people, they have equal status and none is subordinate to the other. He relied upon Article 35-A and supported the judgment (read high court judgment) on this score, and further stated that the various judgements cited on behalf of the appellants were distinguishable as the fact situation in the present case was completely different from the situation in those judgements.
The Supreme Court dealt in detail with various issues before pronouncing its verdict. It said: The judgment goes into great detail as to how the Instrument of Accession was made by Maharaja Hari Singh. What is of importance is to note that after the reins of power were handed over to his son Yuvraj Karan Singh by a proclamation dated 20.6.1949, Yuvraj Karan Singh, by a proclamation dated 25.11.1949, stated that the Constitution of India, which was yet to be promulgated, would apply to the State of Jammu and Kashmir. Also, by a proclamation dated 20.4.1951, a Constituent Assembly was to be set up on the basis of adult franchise in order that this Assembly give to the State its own Constitution.
The apex court pointed out: This being the case, Section 5 of the Jammu and Kashmir Constitution will only operate in areas in which Parliament has no power to make laws for the State.
Speaking about the high court verdict, which it set aside, the Supreme Court said: It is rather disturbing to note that various parts of the judgment speak of the absolute sovereign power of the State of Jammu and Kashmir. It is necessary to reiterate that Section 3 of the Constitution of Jammu and Kashmir, which was framed by the Constituent Assembly on the basis of universal adult franchise, makes a ringing declaration that the State of Jammu and Kashmir is and shall be an integral part of the Union of India. And this provision is beyond the pale of Jammu and Kashmir amendment. Section 147 of the Constitution of Jammu and Kashmir states: -
147. Amendment of the Constitution. - An amendment to this Constitution may be initiated only by the introduction of a Bill for the purpose in the Legislative Assembly and when the Bill is passed in each House by a majority of not less than two-thirds of the total membership of the House, it shall be presented to the Sadar-i-Riyasat for his assent and, upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that a Bill providing for the abolition of the Legislative Council may be introduced in the Legislative Assembly and passed by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting:
Provided further that no Bill or amendment seeking to make any change in:
(a) this section;
(b) the provisions of the sections 3 and 5; or
(c) the provisions of the Constitution of India as applicable in relation to the State;
shall be introduced or moved in either House of the Legislature.''
It is also significant in this context to refer to the Preamble of the Constitution of Jammu and Kashmir, 1957, and compare it to that of the Constitution of India, 1950.
The Preamble of the Constitution of Jammu and Kashmir reads as follows:
''WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR, having solemnly resolved, in pursuance of the accession of this State to India which took place on the Twenty-sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves -
JUSTICE, social, economic and political,
LIBERTY of thought, expression, belief, faith and worship,
EQUALITY of status and of opportunity, and promote among us all,
FRATERNITY assuring dignity of the individual and the unity of the nation,
IN OUR CONSTITUENT ASSEMBLY this Seventeenth day of November, 1956, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.''
It is to be noted that the opening paragraph of the Constitution of India, namely ''WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens...'' has been wholly omitted in the Constitution of Jammu and Kashmir. There is no reference to sovereignty. Neither is there any use of the expression ''citizen'' while referring to its people. The people of Jammu and Kashmir for whom the special rights are provided in the Constitution are referred to as ''permanent residents'' under Part III of the Constitution of Jammu and Kashmir. Above all, the Constitution of Jammu and Kashmir has been made to further define the existing relationship of the State with the Union of India as an integral part thereof.
The Supreme Court said: IT IS THUS CLEAR THAT THE STATE OF JAMMU AND KASHMIR HAS NO VESTIGE OF SOVEREIGNTY OUTSIDE THE CONSTITUTION OF INDIA, AND ITS OWN CONSTITUTION, WHICH IS SUBORDINATE TO THE CONSTITUTION OF INDIA. (EMPHASIS ADDED.) It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents constitute a separate and distinct class themselves. The residents of Jammu and Kashmir, we need to remind the High Court, are first and foremost citizens of India.
It further said: They are governed first by the Constitution of India and also by the Constitution of Jammu and Kashmir.
In anguish, it remarked: We have been constrained to observe this because in at least three places the High Court has gone out of its way to refer TO A SOVEREIGNTY THAT DOES NOT EXIST. (EMPHASIS ADDED)
It has thus been made clear by the Supreme Court that JAMMU AND KASHMIR CONSTITUTION IS SUBSIDIARY to the Constitution of India. There were and still are efforts made to paddle lies and false narratives to spread confusion among masses regarding the non-existent ''sovereignty'' of the J&K Constitution vis a vis the Indian Constitution.
SC views about J&K Constitution