“There is a tide in the affairs of men (sic), which taken at the flood, leads on to fortune. Omitted, all the voyage of their life is bound in shallows and in miseries. On such a full sea are we now afloat. And we must take the current when it serves, or lose our ventures” – William Shakespeare (Act 4, Scene 3 of Julius Caesar).

India finds herself afloat on such a sea, and all eyes are on the Supreme Court. The backdrop is the constitutional challenge to Article 35A of the Indian Constitution. A perusal of the Supreme Court’s orders on the first petition in this regard (Writ Petition (Civil) 722/2014) demonstrates the now customary delay we have unfortunately come to internalize qua proceedings in Indian courts: the first order was passed on the 19^th of August 2014, and the latest order is from 6^th August 2018. The only progress in four years has been an assurance from the apex court on commencing hearing the possibility of a Constitution Bench hearing the petitions. This is slated to get underway on 27^th August 2018.

Article 35A was inserted into the Indian Constitution vide a Presidential Order, viz. the Constitution (Application to Jammu and Kashmir) Order, 1954. The then President, Mr. Rajendra Prasad, had passed this order in furtherance of Article 370(1)(d), which empowers the occupant of the Presidential office to “modify” the constitution. The relation of Jammu & Kashmir to the rest of the country is, today, largely governed by Articles 370 & 35A, and the Delhi Agreement of 1952.

The consequence of the aforementioned writ petition, and four similar petitions, is a constitutional challenge to Article 35A on the grounds that it is violative of the basic structure doctrine; that it was an over-reach of the President’s powers under Article 370 of the Indian Constitution, and that it violates Article 14 in creating an unreasonable distinction between women and men. There is also an Article 14 challenge to Section 6 of the Jammu & Kashmir Constitution on the ground that it creates an unreasonable classification between permanent and non-permanent residents of the state. One of the petitions has also challenged a 1927 notification issued by Maharaja Hari Singh, which creates different classes of state subjects, and forms the basis of section 6 of the J&K Constitution.

A fit case to exercise Writ Jurisdiction?

The author submits, for reasons enumerated in the following section, that there are limited grounds on which the present petitions could be successful; one of these limited grounds is the Article 14 challenge qua differential treatment to men and women. It must, however, be borne in mind that the J&K High Court has already adjudicated on one limb of this: that of the rights of permanent women residents of the state to retain their title in immovable property located in the State, upon marrying a non-permanent resident of the state. The High Court, in that case, had held that, on this limited aspect, there could be no differential treatment between men and women, and the latter’s share in immovable property could not be ousted for marrying a non-permanent resident. The author submits that this is a progressive and well-reasoned judgment, and hence, the Supreme Court, in the present batch of petitions, need only affirm the previous holding of the J&K High Court, on the point of gender discrimination.

And yet…

Article 35A is quite unlike many of its counterparts in the Indian Constitution. For starters, it is conspicuously absent from the main portion of bare texts on the Constitution (here, here and here). This means that it is not located after Article 35. Instead, it can only be located in Appendix 1 of the Constitution. This unexplained positioning is of great concern to those seeking the text, for there is no mention of this positioning anywhere in the main text. Next, Article 35A came into existence vide a Presidential Order, and not vide an exercise of the Parliament’s constituent amending power under Article 368. It is then surprising that the petitioners have invoked the basic structure doctrine in the present petition, for one thing is certain in the otherwise hazy jurisprudence on the basic structure: this doctrine generally applies only to the Parliament’s power to amend the Constitution (and, on occasion, to statutes: here and here). The testing, then, of a Presidentially-ordained article on the anvil of the basic structure doctrine holds no water.

While it is true that the Parliament had no chance to conduct deliberations on Article 35A, it is also a fact that the President acted on the power vested in him by Article 370. Article 35A is then an exception: an exception with the blessing of none other than the Constituent Assembly. Surely, then, the “problem of supremacy of sources” (to borrow from Hart) of the power to insert Article 35A is beyond question? Further, it is interesting to note that the degree to which the President could exercise her/his prerogative under Article 370(1) is being litigated at all, when a Constitution Bench of the Supreme Court has already, in no uncertain terms, held: “We are…of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word ‘modification” used in Art. 370(l) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Art. 370(1) only to such modifications as do not make any “radical transformation”.” The onus, hence, is on the petitioners to distinguish this decision from the case made out in the present petition; a task, the author submits, could prove fairly tricky.

On the Article 14 challenge to the classification between permanent and non-permanent citizens, there seems to a potential stalemate: while on one hand, the striking down of such a classification could certainly contribute towards better diversity in the state; on the other hand, historical and perpetual hostility towards the inhabitants of the state can’t be factored out, and according to H.M. Seervai,[note] H. M. Seervai, 1 Constitutional Law of India: A Critical Commentary, 4th ed. p.474 (1991) [/note] classifications based on historical reasons have seldom been grounds on which Article 14 was exercised by courts.

It is pertinent to understand that writ jurisprudence on constitutionality predominantly constitutes proceedings qua statutory acts, executive acts, and the exercise of the Parliament under Article 368. As the preceding discussion would demonstrate, Article 35A, being a culmination of the exercise of a special Presidential power (by way of an order), stands on a different footing. Even if this is the case, there should ordinarily be no bar on a writ court judicially reviewing Article 35A, because Article 13(3)(a) clearly mentions that “law” includes an “order” (albeit the kind of order is unspecified). However, at the same time, there is nothing in the Constitution to indicate that an Article of the Constitution can be struck down at all, let alone an Article promulgated otherwise than by an exercise of the Parliament.

Conclusions

The Supreme Court certainly has its task cut out in the present batch of petitions, and the author submits that, given the history and sensitivity of the issue, the Court could end up performing a balancing act. However, the contours of such an exercise would merit extreme diligence, caution, and most importantly, significant trade-offs: between the sovereignty of J&K and an opportunity to improve its diversity; between chaos and order, and between the ideal and the pragmatic. For, the outcome of this case could well be the first step towards clearing the air on arguably the most contentious issue of our republic; this decision, thus, is in many respects, a decision on the future of the Indian nation. The proceedings, and judgment, are eagerly awaited.

Update: On 31st August 2018, the Supreme Court deferred the hearing of the aforementioned petitions to January 2019.