35. Article 35A – Protection or Discrimination?

Article 35A allows the Jammu & Kashmir legislature to define the list of ‗Permanent Residents‘ of the State, who are eligible to vote, can work for the State Government, can own land, buy property, can secure public employment and college admissions, etc.

Schedule Castes and Backward Classes

This Article has denied certain basic rights to many communities living within Jammu &Kashmir for the past six decades. Predominant amongst these are the Valmikis of Jammu & Kashmir. Historically there is a marginalized Dalit community found in almost all regions of India. In 1957, around 200 Valmiki families were brought from Punjab to Jammu &Kashmir, following a cabinet decision, specifically to be employed as Safai Karamcharis (sweepers). These families agreed to work in the State after being promised that the ‗Permanent Resident‘ clause would be relaxed in their favour.

After a lapse of five decades, families have grown. However, their plight is that they are ‗Permanent Residents‘ of Jammu &Kashmir only to the extent of being Safai Karamcharis. Their children have studied up to graduation level and beyond but are not eligible to apply for government jobs and cannot get admission to government-run professional institutes. The educated youth from these Valmiki families are only eligible to be appointed as safai karamcharis. The educated Safai-Karamcharis already working in Jammu Municipality is now qualified for further promotions but they can only be employed as sweepers. These Valmikis can vote for Lok Sabha elections, but not for State Assembly or municipality elections. The colony that was allotted to them to live in (Valmiki Colony, Gandhi Nagar, and Jammu) has not been regularized till date. Is this not the worst kind of racism practiced in the modern world?

Migrants and Refugees

Similarly, those who migrated from West Pakistan to the Indian State of Jammu Kashmir during Partition in 1947 have been living there since last 68 years. But over six decades later, they are still identified as ‗refugees‘ and forced to live in ‗camps‘. Even their third generation is tagged as ‗refugees‘ and denied rights and privileges that should have been immediately granted to those who were forced to migrate from Pakistan. Compare their situation with those who migrated from Pakistan to other parts of India such as Delhi, Mumbai, Surat etc. They were rehabilitated with a number of welfare measures such as allotment of houses, jobs etc. In fact, their integration into the mainstream was virtually seamless. Today, they are the rightful citizens of India, enjoying every right and privilege that the Constitution of India confers on all Indians. After over six decades of living like bonded labour, these families want to be free of the ‗refugee‘ tag.

Around 5,764 families consisting of 47,215 persons migrated from West Pakistan to different areas of Jammu Division. No land was allotted to them by the State Government. These refugees were able to occupy some land, which was later allowed to be retained by them without conferring upon them the title of land because of their non-Permanent Resident status. This means they can stay on this land, but cannot sell it or buy any other property. West Pakistan Refugees (WPR) is mostly from the deprived sections and more than 80% of them belong to the Scheduled Castes. The Jammu& Kashmir law for them means – they can be tillers, labourers, tenants but not landowners and land-lords. After six decades, their population has grown manifold. By some estimates, it‘s about three lakh now. It‘s obvious that the land they could retain six decades ago cannot be sufficient now. Denial of ‗Permanent Resident Status‘ in Jammu Kashmir, WPRs cannot get a job in the State Government. WPR families can't avail the benefits of various social welfare schemes launched by the State Government. No other benefits of any kind have been granted to them. Their children are not entitled to scholarships and fellowships available to Permanent Resident Certificate holders.32

Members of West Pakistan Resident families cannot get admissions in any State-run professional colleges. They are not even eligible to cast their vote for State Assembly elections. They have no participation in local village panchayats and other selfgoverning bodies up to the district level. This has brought them down to the level of second class citizens as they have no role in law-making at the State level. While the authorities at the Central and State levels took a number of steps to rehabilitate even the nomadic tribes by allotting them lands on permanent ownership basis, nobody cared for these ‗refugees‘ from West Pakistan.

Gender Biasness

Article 35A is interpreted differently for men and women, and that is where the issues begin. For instance, allied legal provision such as Section 6 of the Constitution of Jammu & Kashmir dissuades women from marrying a man of their choice. By restricting the basic right of a woman and her children to hold property rights if she marries a man not holding the Permanent Resident Certificate. Section 6, however, does not apply to men who marry nonresident citizens. The tacit interpretation of such a provision would simply be that women are considered chattel and property of the men who ―own‖ them, and hence, if their geographical location changes, the status of their rights would too.36

The Basic question here is an inherent gender inequality within the State that is brought about by the provision of Article 35A. A similar matter has been dealt with by the Jammu & Kashmir High Court in 2002 in the case, State of Jammu & Kashmir v. Sushila Sawhney and Ors. 37 The High Court stated that the daughter of a Permanent Resident marrying a person outside the State would not lose the status of Permanent Resident of Jammu & Kashmir. However, after the Sushila Sawhney case, neither did the Parliament make an effort to explicitly change the language of the provision, nor did any organs of the State Government issue a clarification on the same. Moreover, the Sushila Sawhney judgment talks about women‘s permanent status in the State but leaves out the fate of her children, and the present case seeks to do just that.

Similarly, a Kashmiri woman, Charu Wali Khanna, has challenged the Constitutional validity of Article 35A before the Supreme Court, stating that it violated her right to equality under Article 14 enshrined in the Constitution. She stated: ―Article 14 of Constitution gives a fundamental right to equality before law. But Article 35A is heavily loaded in favour of males because even after marriage to women from outside (Kashmir) they will not lose the right of being Permanent Residents. A woman from outside the State shall became a Permanent Resident on marrying a male Permanent Resident of the State but a daughter who is born (to a) State subject will loss the right on marrying an outsider.‖ Because Khanna married out of her caste and settled outside of Jammu & Kashmir, she has been deemed a non-resident citizen and because of such ―unreasonable classification between males and females‖ she decided to approach the Supreme Court.38

She wanted to buy land to build a house but the PDP-BJP government refused her permission citing this particular section of the Constitution. She pleaded before the Supreme Court that ―Farooq Abdullah and his son Omar (National Conference leaders) are married to non-Kashmiris. The father and son not only do not lose Permanent Resident status, but their wives get a right to property too. At the same time, Sarah Abdullah, the daughter of Farooq Abdullah, who is married to Sachin Pilot (Congress leader), loses her Permanent Resident status and right to property too. This is where the gender inequality, a clear violation of right to equality lies. Likewise my client, who married outside the State, loses the citizenship and also property rights.3

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Fear that it would lead to further erosion of J&K's autonomy and trigger demographic change in Muslim majority valley. Political parties say Kashmir resolution lies in greater autonomy; separatists fan paranoia against possibility of Hindus 'flooding' the valley. However, in the last 70 years, demography of Kashmir Valley has remained unchanged even as Hindu majority in Jammu and Buddhists in Ladakh have rights to buy property and settle in the Valley.

UPSC GK: Understanding all about Impeachment of Judge in India (POLITY)

The unprecedented rejection of the motion for impeachment has raised multiple questions, but the wider context of the unfolding spectacle includes a range of related matters. Some key questions answered.

Is there a provision in the Constitution that deals with the impeachment of the Chief Justice of India (CJI)?

Not the CJI specifically. As the CJI is only the first among equals, he too, like other judges of the Supreme Court and High Courts, can be impeached “on the ground of proved misbehaviour or incapacity” under Article 124(4). The Judges (Inquiry) Act, 1968, contains details of the process. The motion is to be signed by 50 members of Rajya Sabha or 100 members of Lok Sabha and, if it is admitted, an inquiry committee consisting of a Supreme Court judge, a High Court Chief Justice, and a distinguished jurist is to probe the charges. If the charges stand proven, the motion is to be presented to each House of Parliament and passed by a majority of the House and 2/3rds of those present and voting in the same session. So, even if the charges are proved, Parliament is not bound to remove such a judge. Finally, the President will issue the order removing the judge.

Is impeachment a political process?

It is neither entirely political nor entirely judicial, but a fine and judicious blend of the two. The process of admission of the impeachment motion, constitution of inquiry committee, and its findings are in the nature of judicial processes, but the adoption of the motion by Parliament is certainly a political process, as members do vote along party lines.

What powers does the Vice-President have with regard to admitting or rejecting a motion for impeachment?

Both the Chairman of Rajya Sabha and Speaker of Lok Sabha must conduct themselves in such a manner that their actions demonstrate their utmost impartiality. In deciding on an impeachment motion, the Vice-President should not ideally take over the role of the inquiry committee, and pass judgment on the allegations. For the first time in Indian history, an impeachment motion has been rejected at the admission stage. But at the same time, as the Presiding Officer, the Vice-President is not supposed to mechanically admit any motion just because it has been signed by the requisite number of members. In his 10-page rejection order on Monday, the Vice-President has said that misbehaviour has not been proved. While “proved misbehaviour” is the ground for the removal of a judge, it is the job of the inquiry committee to give a finding on whether the charges are proved. But again, if the charges are prima facie totally without substance, the Vice-President does have the right to block an impeachment motion at this initial stage itself.

On what grounds has the Vice-President rejected the impeachment motion?

The Vice-President is not duty-bound to give reasons — even though, in this case, M Venkaiah Naidu has given detailed reasons. There is no timeframe within which he must decide. He may form his opinion after consulting such persons as he deems fit and after considering such material as may be made available to him. Naidu has rejected the motion after finding the grounds for impeachment untenable, and based on conjectures without any empirical evidence. He has also pointed to some contradictions in the motion.

What exactly is “proved misbehaviour”?

The Constitution does not define ‘incapacity’ and ‘proved misbehaviour’. The misconduct of a judge is to be proved outside Parliament before a non-parliamentary committee. The Judges (Inquiry) Bill, 2006, defined ‘proved misbehaviour’ as wilful or persistent conduct which brings dishonor or disrepute to the judiciary; wilful or persistent failure to perform the duties of a judge; wilful abuse of judicial office, corruption, lack of integrity or committing an offence involving moral turpitude. The Judicial Standards and Accountability Bill, 2010, proposed to widen the definition of misconduct by adding that ‘lack of integrity’ included rendering judicial decisions for collateral or extraneous reasons, demanding any kind of consideration for giving judgments, and such other acts that have the effect of subverting the administration of justice. The failure to furnish a declaration of assets and liabilities, or wilful giving of false information were also included within ‘misbehaviour’.

In C Ravichandran Iyer vs Justice A M Bhattacharjee (1995), the Supreme Court itself laid down that misbehaviour is a wider term for which no straitjacketed definition may be given. It can be submitted, therefore, that if, due to a judge’s conduct, the judiciary’s credibility has suffered, it can be considered as misbehaviour. This is certainly a political question. Even conduct prior to assuming office is covered — this was why Rajya Sabha had passed the impeachment motion against Justice Soumitra Sen in 2011.

What should be the standard of proof?

The Vice-President has said the charges have not been proved “beyond reasonable doubt” — this is, thus, the standard of proof. However, expectations from judges should high. In all civil matters, the standard of proof is “preponderance of probabilities”. Both Australia and South Africa have the latter as the standard of proof in their impeachment processes for judges.

Does the judge have a right to be heard?

Yes, but not at the time of admission of the motion — that is why the Vice-President did not inform the CJI. During the inquiry, the judge has the full right to defend himself. Justice Sen even addressed Rajya Sabha after the inquiry found him guilty of “proved misbehaviour”, and the House was considering the motion for his removal.

One of the charges against CJI Dipak Misra is that he sent sensitive matters to particular Benches by misusing his authority as Master of the Roster. Which recent judgments have been controversial for this reason?

In a judgment delivered on April 11 (Ashok Pandey), a three-judge Bench led by CJI Misra said that “as repository of constitutional trust, the Chief Justice of India is an institution in himself”, and must, therefore, be trusted. Justice D Y Chandrachud, who authored the 16-page order, himself will be CJI in the near future.

Another judgment was given on November 10, 2017, by a five-judge Bench led by the CJI, which overturned within 24 hours an order passed on November 9 by a two-judge Bench of Justices J Chelameswar and S Abdul Nazeer, which had said that a case of alleged judicial corruption involving a blacklisted Lucknow medical college, should be heard by a Constitution Bench comprising the five most senior judges of the Supreme Court. This was unprecedented, as administrative powers were used by the CJI to constitute a five-judge Bench, which then judicially overturned the order of the Justice Chelameswar-led Bench. Since the CJI was on a Constitution Bench, the case had been mentioned before court number 2 in a routine manner, and this court passed an order to list the matter before the five most senior judges. The five-judge Bench underlined that only the CJI had the power to decide who hears which case. Two petitions, by Kamini Jaiswal and CJAR, seeking an SIT probe into the matter, were subsequently dismissed.

In both these cases, the CJI’s absolute power as master of the rolls was upheld. While this is certainly the correct legal position today, it must be noted that in “administrative actions”, the CJI cannot act in an arbitrary manner.

So, what options are available to the opposition now?

They can go to the Supreme Court — senior Congress leader Kapil Sibal has already announced they will challenge Naidu’s order. If that happens, ideally, the CJI should not hear the matter or constitute the Bench to hear it; in fact, no judge who is in line to be CJI in the future should sit on the Bench, which will underline both the independence and integrity of the Supreme Court. The principle of “no one shall be a judge in his own case” should be strictly adhered to, so that “justice is not only done, but is also seen to have been done”. In Tulsiram Patel (1980), the Supreme Court itself held that non-observance of the principles of natural justice violates the right to equality.

In the context of the challenge to the CJI’s decisions, is the judiciary seen as ‘state’ under our Constitution?

The ‘judiciary’, when acting judicially, is not ‘state’. But when the CJI or the Supreme Court take administrative decisions, they are definitely subject to fundamental rights. In Srilekha Vidyarthi (1991), the court said that reasonable and non-arbitrary exercise of discretion is an inbuilt requirement of law, and any unreasonable or arbitrary exercise of it violates the right to equality. Bench constitution being an administrative function, the CJI cannot act in an arbitrary manner.

But if all judges are equal in powers, why the debate about picking ‘junior’ judges?

All judges are equal and seniority has no bearing on the constitution of Benches. In fact, in many cases, junior judges have authored better judgments. But then, equality also means that senior judges be treated equally and fairly with junior judges. Their exclusion has sent wrong signals.

Other than impeachment, what other mechanism of judicial accountability is available under the Constitution?

There is none. And because the impeachment process is tedious and lengthy, judges have virtually no accountability. The complexity of the impeachment process has ensured that no judge has been removed so far.

What reforms have been proposed to ensure better judicial accountability?

The Judges (Inquiry) Bill, 2006, based on the 195th Report of the Law Commission, sought to create a judicial forum to deal with complaints against judges with the establishment of the National Judicial Council, which was supposed to investigate charges of misbehaviour. Four senior-most judges were to serve as its members. Where impeachment was not warranted, warnings and advisories could be issued, and withdrawal of judicial work, asking a judge to voluntarily retire, and private or public admonition or censure were proposed as minor consequences. The Bill was criticised as the Constitution does not give Parliament power to create new punishments. Its powers under Article 124 are confined to regulating the investigation and proof of misbehaviour. The Bill could not be passed as the then Opposition did not allow Parliament to function, and the UPA government failed to evolve a consensus.

Credit: Indian Express Explained (http://indianexpress.com/article/explained/cji-dipak-misra-impeachment-congress-supreme-court-venkaiah-naidu-issues-of-constitutionalism-accountability-5148897/)  

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