Abolishing Article 35A. Can it be done?

Jammu and Kashmir acceded to the Union of India on 27th October, 1947 when Lord Moutbatten, the then Governor-General of India, accepted the Instrument of Accession signed by the Maharaja of Jammu and Kashmir under the provisions of Government of India Act, 1935. This Instrument of Accession did not mean that any future Constitution of India will be applicable on the State of Jammu and Kashmir. The instrument just gave the Parliament the power to make laws on the matters on Foreign Policy, Defence and Communication, and there was to be a separate Constituent Assembly for the State of Jammu and Kashmir which will make a constitution just for the State. If the Parliament wanted to make laws on any subject other than those mentioned above would be done via a Presidential Order with concurrence with the State Government; and to make any provision of the Constitution of India applicable on the State of Jammu and Kashmir, it would also require an order by the President after it is ratified by the Constituent Assembly of Jammu and Kashmir.

These are the special provisions available to the State of Jammu and Kashmir under Article 370 of the Constitution of India and mentioned in the Instrument of Accession. Political Scientist Louise Tillin explains that Indian Constitution, establishes a form of Asymmetric Federalism in which some states enjoy greater autonomy of governance over others; and this form of federalism has been typified by Article 370 of the Indian Constitution.

Today one of the most controversial issue in front of the Supreme Court is that of Article 35A. This issue was raised by a NGO, We the Citizens, when they challenged the constitutionality of Article 35A. They challenged Article 35A, on two grounds, which are, firstly this Article was introduced by a Presidential Order and not by way of ordinary amendment under Article 368 and secondly, this Article infringes the basic structure of the Constitution and therefore it shall be repealed.

What is Article 35A?

Article 35A created the concept of ‘permanent resident’ which changed the status of the people of Jammu and Kashmir from subjects to permanent residents and granted Indian Citizenship to them. This Article came into force with the concurrence of the State Government via Constitution (Application to Jammu and Kashmir) Order, 1954. This Article provides special privileges only to the permanent residents of Jammu and Kashmir. These privileges include owing immovable property in the state or get government jobs or scholarships. It empowers the state for bestowing special rights and privileges to the people. It also empowers the state to define who will be the permanent resident of the state and thus who will get the privileges mentioned under this Article.

Can it be Abolished?

Both the arguments given by the NGO are not maintainable in the Court of Law. The first argument that Article 35A was not introduced via a amendment but a Presidential Order is meritless. It must be first understood that Article 370 is as much an article of Constitution as Article 21. Article 370 empowers the President to make laws regarding Jammu and Kashmir via a Presidential Order in concurrence with the State Government. Thus Article 35A is the result of the power of President under Article 370.

Article 370 is the result of the promise made by the Government of India in the Instrument of Accession to the Maharaja of Jammu and Kashmir. The Supreme Court recognized this promise as early as 1959 in Prem Nath Kaul v. State of J&K. A few years later, another Constitution Bench of the Court, in  Sampat Prakash v. State of J&K, further clarified the position. “Art. 370 of the Constitution has never ceased to be operative,” it held, “and there can be no challenge on this ground to the validity of the Orders passed by the President in the exercise of the powers conferred by this Article.”

Moreover, Article 35A is not the part of the main body of the Constitution and is placed in the appendix of the Constitution. Thus invoking Article 368 for some addition in the appendix, which will not be applicable to the whole of the Union of India was not necessary.

And the second argument, that Article 35A infringes the basic structure of the Constitution is equally of no good. The canonical rule established in 1973, in Kesavananda Bharati v. State of Kerala, that the powers of amendment under Article 368 are not plenary and that the Constitution’s basic features cannot be abrogated, was based expressly on an interpretation of the text of Article 368. Its logic doesn’t extend reflexively to amendments made under Article 370, a provision, which in and of itself, is essential to maintaining India’s federal structure. Besides, more than six decades have elapsed since Article 35A was inserted, and by now vast tracts of properties would have doubtless changed hands. In such cases, where constitutional amendments create vested rights in persons, as the Supreme Court held in Waman Rao v. Union of India, an amendment made prior to the decision in Kesavananda cannot be susceptible to a basic structure challenge. To hold otherwise would have consequences far more devastating than might immediately be apparent.

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