While Article 35A has socioeconomic and political factors, this article restricts itself only to the constitutional issue that whether the Article 35A is constitutionally valid or not?
The Indian Constitution (IC) protects certain sections of the society which have faced injustice historically. In the similar vein, the IC protects certain States to immune from the Constitution under Part XXI titled “Temporary, Transitional and Special Provisions” from Article 369 to 392. In this Part, the IC provides temporary provisos to the state of Jammu and Kashmir (Art 370). The IC also provides special provisions to State of Maharashtra and Gujrat (Art.371), Nagaland (Art. 371A), Assam (Art. 371B), Manipur (Art. 371C), Andhra Pradesh (Art. 371D), Sikkim (Art. 371F), Mizoram (Art. 371G), Arunachal Pradesh (Art. 371H), Goa (Art. 371-I) and Karnataka (Art. 371 J).
The object behind to provide “special” and “temporary” provision to the certain State was to protect these State's autonomy in some areas. The Constituent Assembly of India spare enough time on these provisions to make India more democratic and inclusive. Among all these provisions Article 35A is contesting at present political juncture in India. The Article 35A was inserted in the IC by the Presidential Order of 1954. The Article 35A yields special rights and immunities to the permanent residents of the Jammu and Kashmir from the rest of Indian citizen. In the light of this article a non-permanent resident of Jammu and Kashmir cannot enjoy any Government facilities. There are two reasons behind the contesting of Article 35A, first, the constitutionality of insertion of Article 35A, and second the conception of equality among the Indian citizens.
The Presidential Order made under the Article of 370 (1) (d) which empower to the President of India to make exception and modifications regarding the State subject with the concurrence of the State Government. The Constitutional question arise here regarding the Presidential Order, 1954, Article 35A and Article 370 (1) (d) that whether the President of India has the power to amend the Constitution? Whether the Article 35A is the Constitutional valid which came into existence by the bypassing of all constitutional mechanism? Whether the Article 368 has no meaning to amend the Constitution? The piece will try to attempt to give answer of these questions.
The incorporation of Article 35A in the Constitution
Article 35A is the sole provision in the IC which neither discuss in the Constituent Assembly nor in the Parliament. This Article came into existence by a Presidential Order passed by Dr. Rajandra Prasad on the advice of Nehru’s cabinet in 1954 “The Constitution (Application to Jammu and Kashmir) Order, 1954”. This Article states about the rights and privileges of the permanent resident of the Jammu and Kashmir which exclude any person from all State’s benefits who is not the permanent resident of the State. This Presidential Oder exercises its power from Article 370 (1), the Article 35A states:
“35A. Saving of laws with respect to permanent residents and their rights.—Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,—
(a) Denning the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) Conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
(i) Employment under the State Government;
(ii) Acquisition of immovable properly in the State;
(iii) Settlement in the State; or
(iv) Right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part".
Delhi Agreement 1952 and Article 35A
The Delhi Agreement 1952 (announced on 24 July 1954) regarding the constitutional relationship between the Indian and Kashmir held between Prime Minister Nehru and Sheikh Abdullah. The Delhi agreement established constitutional status to the State of Jammu & Kashmir with Indian Government which became the part of the federal structure of Indian Constitution. It was the agreement between the sovereign bodies which make a relationship on certain grounds. The agreement provided certain immunity to the permanent resident and considered them as the citizen of India but regarding the special rights and privileges to the permanent resident remains to the State legislature. The Article 35A is the fruit of this agreement which empowers State to facilitate its permanent resident as its thinks fit to do.
The Delhi Agreement states:
Does the President of India have sole power to amend the Constitution through “Order”?
Besides giving assent to the Bill passed by the Bothe Houses (Lok Sabha and Rajya Sabha), President of India has sole legislative power under article 123 power to make ordinance when either house of the Parliament is not in session. This legislative powers of the President have only six-month effect; in other words, it is the authority to make laws without discussion in the Parliament in urgency for a shorter period. It is an exception in the making law not a general rule or a permanent measure.
In the Constitutional scheme, the President of India has no legislative power to amends the Constitution by bypass the democratic process. President’s legislative, executive and judicial power is subjective to aid and advice by the Council of Minister (Art 74), but all these powers do not allow to the President to go beyond the spirit of the Constitution.
Does Article 370 have the power to incorporate new Article in the Constitution or amend the Constitution?
Nowhere in the Article 370 mention that President of India has the power to amend the Constitution or insert a new Article in the Constitution? The Article 370 only states that the President can make any exceptions and modifications with the concurrence of the Government of the State. Sub-clause 1 (d) of the Article 370 states that:
“Such power of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify.”
Article 368: Amendment power of the Constitution and Article 35A
Article 368 is the only way to amend the Constitution, not the President. The marginal note of Article 368 states “Power of the Parliament to amend the Constitution and procedure, therefore" which means it is the Parliament that has the power to amend the Constitution. Sub-clause 2 of the Article 368 states that:
“An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by majority of the total membership of that House and by a majority of not less than two-third of the members of that House present and voting, [it shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of Bill”
It is quite clear that Article 368 is the only ways that amend the Constitution by way of addition, variation or repeal any provisos of the Constitution.
Judicial Approach on Article 35A
A Delhi based NGO “We the Citizens” challenge the constitutionality of Article 35A before the Supreme Court of India. Another petition filed by a Jammu and Kashmir native Charu Wali Khanna who challenged the constitutionality of Article 35A which restrict the constitutional right, right to property. According to this Article 35A if a native woman marries a man not holding a permanent resident certificate of Jammu & Kashmir then she would restrict from her property right.
The petitioner claimed that: “Her children are denied a permanent resident certificate, thereby considering them illegitimate." The petition states that Article 35A is against the "very spirit of oneness of India" as it creates a "class within a class of Indian citizens." Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.
The learned scholar A G Noorani states in his article “Article 35A is beyond challenge. In India the lust for uniformity possesses communal-minded majoritarian” that “The judgment delivered by Justices Muzaffar Hussain Attar and Ali Mohammad Magrey of the High Court of Jammu & Kashmir on 16 July 2015, is of historic significance, quite apart from its cogent analyses; especially of Articles 370 and 35A.”
Noorani further states on the petitioned filed by the NGO has no constitutional and legal values
“The legal argument is three-fold. First, the President cannot by-pass Parliament’s Amending power, under Art. 368, by making an Order under Art. 370. Secondly, he cannot add a new provision Art. 35A. Lastly, it is violative of “the basic structure” of the State’s Constitution as it violates Art.14, the guarantee of equality before the law. All three are groundless. The Petitioner is unable to find out as to whether the President can amend the Constitution by incorporating new Article by exercising power under Article 370 (1) (d) of the Constitution of India. The incorporation of new Article namely Article 35A to the Constitution of India has been effected vide Constitution (Application to Jammu & Kashmir) order 1954 which is beyond the jurisdiction and power of Respondent No. 1 inasmuch as the said provision namely Article 35A is unconstitutional”.
On the constitutionality of Article 35A and Presidential Order 1954, the learned academician Prof K.L. Bhatia states that:
“A plain reading of the language of Articles 370 and 368, both from legalese-imperative positivist as well as creative or pragmatic or realistic or relativist or social engineering interpretation, conclusively construes that it does not authorize the executive head of the Indian State, i.e., the President, to add by enacting any new provision in the text of the Constitution of India in its relation as well as application to the State of Jammu Kashmir.The sole object of this new added Article 35A by the Presidential CO 1954 is to provide special rights and privileges to the permanent residents of Jammu Kashmir being citizens of India vis-à-vis the citizens of India, viz., employment in the State Government; acquisition of immovable property; settlement in the State; or scholarships and other forms of aid as per the discretion of the State Government”.
A five-judge Bench of the Supreme Court in Puranlal Lakhanpal vs. The President of India held that of the President of India has power to ‘modify’ the constitution under Article 370. However the apex court did not discussed on Article 35A and the court did not made clear that whether the President has sole power to amend the Constitution without the Parliament.
By above analysis, we can say that neither the President of India has sole power to amend the constitution through bypass the entire Constitutional mechanism nor the Article 370 gives power to the President to insert any Article in any Part of the Constitution. According to the Constitutional scheme, legally the question of that the president cannot make constitutional amendments is settled but 35 A is more than just a legal issue. It is the need of the hour to debate Article 35A because it has not only a constitutional or legal issue, on the contrary, it has larger socioeconomic and political issue. At present, the matter is sub judice before the apex court let’s see what will be the decision of the Supreme Court of India on the Constitutionality of Article 35A.
 AIR 1961 SC 1519.
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