If Article 35A is expended it will impinge on basic tenets of constitutional interpretation

It became law through a constitutional process. Its repeal will be a blow to federal India

When the minions of the BJP promise abolition of Article 370 or Article 35A, especially prior to the elections, it is not to be taken seriously. In fact, the response, if any, should be to dare them to do it. Indeed, I had done so in 2014 in response to a rant by Jitendra Singh, a minister in the PMO, when he spoke out of turn (‘Dare them to do it!’, Kashmir Life, June 2, 2014). It has been almost five years since and Article 370 and 35A stand where they are even as Singh is sitting in the same chair!

But when an erudite political leader with the genteel and gravitas of Arun Jaitley goes public on it, it needs to be taken very seriously. In a blog, Jaitley has said that “Article 35 A was “surreptitiously” included in the Indian Constitution, terming it as a “historical blunder” committed by Jawaharlal Nehru.

One cannot pick a bone with Jaitley on his calling it a “historical blunder”. That is an opinion based not only on an ideology but a certain understanding of Indian history and a vision for Indian polity. But, the same cannot be said about besmirching Article 35A as a deceitful entry in the Constitution of India. Besides political, it has serious constitutional implications. It also makes the Constitution of India appear as if it were contaminated.

Article 35A empowers the government of Jammu and Kashmir to do two things: First, to define a class of persons as constituting “permanent residents” of the state and second, to allow the government to confer on these persons special rights and privileges with respect to matters of public employment and acquisition of immovable property in the state. In addition, it grants immunity to such special rights and privileges legislation from being annulled on the ground that they infringe one or the other of the fundamental rights guaranteed by the Constitution.

Article 35A was included into the Constitution of India in 1954 by a presidential order made under Article 370 of the Constitution of India. The process followed in getting Article 35A is as constitutional and transparent as it can get.

The basic principles committee of the J&K Constituent Assembly, which was set up in 1951, presented its report to the Constituent Assembly in February 1954. As a part of the report, an annexure which listed out the provisions of the Constitution of India, besides Articles 1 and 370, that should be made applicable to J&K. This annexure included, among other Articles, Article 35A.

It is an interesting factoid that it was Girdhari Lal Dogra (father-in-law of Jaitley), who proposed that the annexure be sent to the government of India for appropriate action. This was February of 1954 and three months later, the President’s order under Article 370 was issued, incorporating, among other provisions, Article 35A in the Constitution.

The Article, through which Article 35A was brought in, i.e Article 370, was debated threadbare in the Constituent Assembly of India for more than five months before it was made a part of the Constitution as adopted in 1950.

Haseeb A Drabu