Question raised on constitutional validity of 35A?

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Question raised on constitutional validity of 35A?

Question raised on constitutional validity of 35A?

Representational Image   ¦   Aug 07, 2019 06:11:38 PM (IST)

 Question raised on constitutional validity of 35A?-1

Lucknow: Article 35 A was added through the Constitution (Application to Jammu and Kashmir) Order, 1954 issued by the President, Dr Rajendra Prasad, on 14 May, 1954 in exercise of powers conferred on him by clause 1 of Article 370. 

There was no amendment to the Constitution, nor was this contentious article made part of the main body because under Article 370 provisions can be introduced through Presidential orders.  

On Monday (August 5), the Central government scrapped this Article just as it was introduced, without resorting to the procedure required for effecting changes in the Constitution. Former Solicitor-General of India Harish Salve explained, “Article 35 A was inserted through the Presidential order in 1954. Today the same order has been superseded.” 

One doesn’t find Article 35 A in the main body of the Constitution of India as it lies buried in its last few pages as it was incorporated as ‘Appendix 1’, and only finds a vague reference in clause 2 of Article 370, of which it is a part.

Clause 2 of Article 370 refers to Article 35 A as it reads, “See the Constitution (Application to Jammu and Kashmir) Order, 1954, as amended from time to time in Appendix 1. 

Article 370 (3) states: “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify”, but made a recommendation from the Constituent Assembly necessary. 

As Jammu & Kashmir is under President’s rule, a recommendation from the Governor has been used to scrap the provision. Unlike some other articles, like Article 21 A (Right to Education) which follows Article 21 and was placed above Article 22 after an amendment, Article 35A took a different route for a place in the Constitution. 

Similarly, Article 239 A was inserted after Article 239 of the Constitution for “the creation of local legislatures or Council of ministers or both for certain Union territories”. This was followed by Article 240, which was amended to include Pondicherry (now Puducherry) and insertion of a provision.   

Article 35 A is, therefore, unique in two respects. First, it does not follow Article 35 of the Constitution, Article 36 does. (B) It was introduced through a presidential notification and not through constitutional amendment as prescribed under Article 368.  

As per Article 368 “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 a majority of the total membership 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…”

That is why the constitutionality of Article 35 has been challenged in the Supreme Court. The petition filed by ‘We the Citizens’, an NGO, states, “The President of India under the garb of a temporary provision i.e. Article 370 (1) cannot amend the Constitution by incorporating a new Article of permanent nature.”

It is argued, that technically Article 35A is not part of the Indian Constitution as it was not debated and passed into law by Parliament. 

In 2015 the J&K High Court had ruled that the power to rescind the article vested with the state legislature. In 2018 the Supreme Court had observed that since the state assembly had been dissolved the President of India would not be able to execute the provisions for its withdrawal.

Article 35A attracted controversy because of the special rights it confers on permanent residents of the state. It authorizes the state legislature to define permanent residents. The article proscribed outsiders from owning immovable property, settling permanently and availing of government benefits.

The article also denied a woman property rights if she married a non-permanent residents. Even the children of such couples lose right to share in ancestral property, inheritance, education and right to work in the state. Because of these provisions, the article was termed as discriminatory. It has also been challenged on the ground that it discriminates against women of the state.

A new set of petitions are likely to come up in the Supreme Court challenging the validity of the August 5 Presidential order for bypassing the state legislature.

- By Atul Chandra

(Atul Chandra is a member of 101Reporters)