Amending the Constitution of India to add a new article 35A is Questionable

02 Aug 2017 14:38:37


Daya Sagar

Earlier it was Art 370 of Constitution of India  (COI) and now it is also Article 35A that is more in focus with regard to Indian state of J&K.  Mehbooba Mufti, J&K Chief Minister has been quoted as having said on 28-07-2017 that if Art 35A tinkered, no one in JK will hold Indian flag (.toe mujhe yeh vatane mein koyi gurej nahin ki oos jhande ko kanda dene bala koyee nahin  hona .. , let me make it very clear"). Why it has been  so with regard to Art35A? When in 2009 I had initiated humble discussions / debates on the existence and status of Art 35A, very few people had taken it seriously.

The Permanent Resident of J&K Law / Constitutional Provision (commonly referred as State Subject Law) of Indian state of Jammu & Kashmir is more under discussions after some petitions have been filed in  High Courts  and Supreme court of India .To be brief the common understanding has been that the this law  (Permanent Resident of J&K status Law ) discriminates between citizens of India as regards owning immovable assets in J&K , seeking government jobs in J&K , obtaining  education from J&K Government owned professional colleges and  voting for & entering into J&K Legislature  to the extent of violating the fundamental rights of some citizens of India as granted by Constitution of India (COI) under articles  like 14 (right to equality),15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth),16 (Equality of opportunity in matters of public employment) ,19-c (to reside and settle in any part of the territory of India), *21A (  Right to education …  *Ins by the Constitution (Eighty-sixth Amendment) Act, 2002, s. ) etc. Whereas, facts are not so simply so.

Of course to be a Permanent Resident of India one has to be a citizen India first. No doubt those Indian citizens who come in the category of the Permanent Residents of J&K are today enjoying preferential treatments in J&K over other Indian citizens worth even violating the fundamental rights of other Indian citizens but the safe guards to local discriminatory provisions as incorporated in J&K Constitution Section-51 -  Qualifications for membership of the Legislature.- A person shall not be qualified to be chosen to fill a seat in the Legislature unless he   is a permanent resident of the State, and makes and subscribes before some person authorised in that behalf by the Election Commission of India an oath or affirmation according to the form set out for the purpose in the Fifth Schedule Section-127 -  Transitional provisions.-Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as service or post under the State, shall continue in force so far-as consistent with the provisions of this Constitution Section-140-  Elections to the Legislative Assembly to be on the basis of adult suffrage. The elections to the Legislative Assembly shall be on the basis of adult suffrage that is to say, every person who is a permanent resident of the State and who is not less than Eighteen years of age on such date as may be fixed in that behalf by or under any law made by the Legislature and is not otherwise disqualified (Section-157(2 & 3) Repeal and saving of laws and rules  Notwithstanding the repeal of the said Act but subject to the other provisions of this Constitution, all the laws in force in the State immediately before the commencement of this Constitution shall continue in force until altered or repealed or amended by competent authority. All notifications published, proclamations issued, powers conferred, jurisdiction vested, forms prescribed, local limits defined, and orders, rules and appointments made under any regulation, order, law or rule in force immediately before the coming into operation of this Constitution and which are not inconsistent with any of the provisions of this Constitution, shall be deemed to have been respectively published, issued, conferred, vested, prescribed, defined and made under this Constitution and shall remain in force until repealed or modified either expressly or by implication by competent authority. as well as local executive orders provisions made in favour  of Permanent Residents of J&K are not made under the basic Permanent Resident provisions  as  made in Section-6 of J&K Constitution (Permanent residents:-{1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954- - (a) he was a State Subject of Class I or of Class II ; or (b) having lawfully acquired immovable property in  the State, he has been ordinarily resident in the State for not less than ten years prior to that date. The discriminatory provisions are also not under Art370 of COI.

The discriminatory provisions are instead constitutionally guarded by another Article by the name Art 35A. This Article 35A has not been mentioned in the main text of the Constitution of India but has been mentioned only in Appendix–I THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR ORDER,1954 to the Constitution of India. It is the Constitution (Application to Jammu and Kashmir) Order of the President of date 14 May 1954 that is placed as Appendix –I to Constitution of India and only that ( Appendix-I)   Art 35A is mentioned.

 

THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954  (4-j)  After article 35, the following new article shall be added, namely:

“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) defining 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 property 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.

On going through Constitution Application to Jammu and Kashmir Order 1954 C.O 48 one would find that there Art 35A has been mentioned as a “new article” included in the COI on 14 May 1954. It must surprise any considerate mind that why an Article of Constitution of India is not mentioned in the main body of the Constitution!  Since this article is not mentioned in the main text of the constitution even many legal luminaries practitioners were either not aware of the seriousness constitutional status of this article or they had atleast not given a serious thought over the nature and contents of ‘Art35A’.  Some legal practitioners did accept this during discussions after we had initiated a study on the existence of Art35A in 2009. It could be alleged that this Article was intentionally not mentioned in the main text of Constitution of India, had it been mentioned in the main text surely it would not have remained pointedly unchallenged not questioned for nearly six decades particularly for its having been included in Constitution of India simply by a Presidential order  and by following the constitutional channels of constituent powers resting in Art-368 of Constitution of India.                                                  

 

Questions could be raised on Union of India too for  having unduly and unconstitutionally overstretched the jurisdiction as available to President of India under Art 370 (1) of Constitution of India  so as to provide a ‘constitutional’ cover to discriminatory laws orders made in favour of some citizens of India falling in the category of Permanent Resident of J&K (State Subject) in the shape of Art35A said to have been added in Constitution of India  by an Presidential Order of 14 May 1954. The State subject law that was initiated by Maharaja of the then Princely State of J&K in 1927 has been the reference material as was used by the Constituent Assembly of J&K for writing Section-6 J&K Constitution  defining Permanent Resident of J&K.

Although the State Subject law of  pre-independence  days too was very conservative but Maharaja’s Government  had provisions intensions for accommodating people from other Indian states  and   awarding status of State Subject of J&K Class-III to some people of merit pre 1947 law said “All persons, other than those belonging to Classes I and II permanently residing within the State, who have acquired under a rayatnama any immovable property therein or who may hereafter acquire such property under an ijazatnama and may execute a rayatnama after ten years continuous residence therein  and those who were  adjudged of some extraordinary value to the cause of State (J&K) and her people. Many people were bestowed with state subject rights by Maharaja’s Government.

Who could be of extraordinary value to the ‘State’ and her people than those who give supreme sacrifices for defending their lands & people from the enemy. To quote as  per Department of Internal Security, Jammu and Kashmir Affairs , Border management , States and Home , GOI’s annual report 2003‑2004, in 2002‑2003  433 soldiers and in 2003-2004  326 soldiers  lost their lives even fighting terrorism in J&K but no hearts of J&K leaderships or in J&K Government have cared to own the  families of non- permanent residents among them worth making them own a piece of land in J&K, their wards to study J&K Government professional colleges and the like . Not only that, in independent India 21 Indian soldiers have been awarded Param Vir Chakra (PVC) after 1947 and out of these 15 soldiers were Non-Permanent Residents of J&K (Non State Subjects of J&K) who had fought on J&K Borders/ Loc. But J&K Governments have not extended the status of Permanent Resident of J&K even to these 15 PVCs whereas had it been Maharaja’s time, He would have surely granted ‘state subject’ rights to atleast martyr families.

 

:Art 35A is a “New Article” and not an existing provision of COI with some exceptions & modifications :

:Using Art 370 (1-d) for amending the Constitution of India to add a new article  is Questionable:

No doubt in Constitution of J&K provision there exists under Sections-8 and Section-9 for  making changes to definitions and provisions wrt to the Permanent Residents of J&K ( including Section-6) but why no corrections have been made till date inspite of demands and suggestions made in this regards could be a question. 

Similarly about 5000 families had come from the then West Punjab ( West Pakistan) under the pressures of 1947 partition of British India to J&K as refugees. They were allowed to settle here in J&K. It is now nearly 70 years since their coming in J&K but although they are citizens of India , they have not been granted the Permanent Resident of  J&K Status and are hence are denied their basic fundamental rights in J&K as regards government service, owning immovable property, availing the facilities in government professional colleges, voting in elections to J&K legislature. It is not out of place to mention here that Government of Jammu & Kashmir vide  Notification No.578-C  0/5   1954  of  7.5.1954  ( State Cabinet’s decision  No. 9578-C of 1954), had allowed  the lands  occupied by West Pakistani Refugees to be possessed and cultivated by them. But the West Pakistan Refugees staying in J&K and even cultivating  lands in J&K for nearly 7  decades have not been  still granted rights as Permanent Residents of J&K  although there is provision in J&K Constitution where in the conditions for qualification as PRs of J&K can be redefined under Section-8 and Section-9 of J&K Constitution. Maharaja Hari  Singh ( before 1947 ) and State Government  after 1947 had has granted PRC State Subject status relaxations as regards some local laws orders to some people  as special case. Maharaja’s government would have surely granted status of State Subject Class-III to them.

Even Hon’ble Supreme Court of India had in the case of Bachan Lal Kalgotra vs State Of Jammu & Kashmir And Others  (Writ Petition No. 7698 of 1982   2 SCC 223  pertaining to  1947 West Pakistan refugees settled in J&K)  on 20 February, 1987 made observations in this regard with  particular reference to Art35A of Constitution of India .. Quote : It is to be noticed here that these provisions are not open to challenge as inconsistent with the rights guaranteed by Part III of the Constitution of India because of "the Constitution (Application to Jammu & Kashmir) Order, 1954" issued by the President of India under Art. 370(1)(d) of the Constitution by which Art. 35(A) was added to the Constitution in relation to the State of Jammu & Kashmir. ….  In the circumstances,  in view of the peculiar Constitutional position obtaining in the State of Jammu & Kashmir. We do not see what possible relief we can give to the petitioner and those situate like him. All that we can say is that the position of the petitioner and those like him is anomalous and it is up to the Legislature of the State of Jammu Kashmir to take action to amend legislation, such as, the Jammu & Kashmir Representation of the People Act, the Land Alienation Act, the Village Panchayat Act, etc. so as to make persons like th. This can be done by suitably amending the legislations without having to amend the Jammu & Kashmir Constitution We do hope that the claims of persons like the petitioner and others to exercise greater rights of citizenship will receive due consideration from the Union of India and the State of Jammu & Kashmir. We are, however, unable to give any relief to the petitioners Unquote.

It is not only the case of PVCs and West Pakistani Refugees settled in J&K, even after advisories form courts the female permanent residents of J&K can’t chose a bridegroom of their choice i.e in case ‘she’ marries a non- state subject her children & finance can buy property in J&K / can not join government service in J&K since they will not be considered as Permanent Residents of J&K and Article 35A defends such violation of fundamental  / human rights of ‘woman’ constitutionally not void.

Only thing that could be inferred is that inspite of “Kashmiri” leadership seeing some welfare specials in J&K, in their hearts they are not interested for some good even  for ‘their’ people and look for every available opportunity to project Kashmir (J&K) not as good India as other Indian states. Had it not been so, some more people of merit value would have been surely granted PR status preferences. Even Dr. Farooq Abdullah has said in a TV interview that he is in favour of abandoning modifying such provisions but his party colleagues do not go for that. Hence, has emerged the need for even looking into the validity of Art 35A from the point of view of constitutional technicalities and the way  Mehbooba Mufti Ji has issued warnings in this regard clearly shows how badly such provisions have been used over the years simply to  ‘distance’  ‘Kashmir’ ( so far the leadership from other regions has never mattered to Delhi) from India simply for political game plans. Since even  no advisory to J&K CM has come from GOI after her saying on 28th July while referring to questions being raised on validity of Art 35A of Constitution.  jhande National Flag ko kanda dene bala koyi nahin hoga though it may hurt some ,it could also be said even to BJP staying in power appears priority number one. 

Why discriminatory laws have survived even after independence in the Indian State of J&K even after independence under the garb of provisions ‘enshrined’ in ‘ Article 35A’ of Constitution of India inspite of there being provisions available in J&K Constitution (Section-8 and9)  and even after there were some advisory notes made by even the Supreme Court of India  could be valid question. A humble debate was initiated by me in 2009 on Art 35A of Constitution of India pointing out that going by the text of C.O 48 of 1954 , article 35A 'of' Constitution of  India  is not a modification of some article or modification or part of Art 35 but it is all together a new article added in Constitution of India after Art 35  through a Presidential order executive order and so 'even' the birth / the very existence  of this article  comes under a question mark.

Only answer that appears worth consideration could be that political leadership that has been enjoying the confidence of Delhi governments leaders has been working with the strategies that could project to the other world J&K as a state different than other Indian states to the extent that even some better provisions have not been extended to common people of J&K by those who have been taking pride in ‘Vision Nya Kashmir’ as well  as claiming to have obtained special welfare law concessions. In this regard the denial of basic human rights to choose a life partner of choice even to  a  female woman  Indian citizen who is a Permanent Resident of J&K could be quoted what to talk of those who are not permanent residents of J&K as defined in Section-6 of J&K Constitution. In case a woman Permanent Resident of J&K marries a person from Punjab or UP her husband & children shall not be having Permanent Resident Status under the present laws. Sections 8 and 9 could be well used atleast  for removing this discrimination but even that has not been done. It may hurt some but it will not be wrong to say that over last 7 decades Delhi has trusted only Kashmiri leadership and the Kashmiri leadership has instead preferred to keep J&K involved in controversies of Nationalities and citizenship. This way it could be said that Art 35A has been used less for the benefit of Indian citizens living in J&K but more for indirectly harming them.

Article 35A of Constitution of India has been added in the Constitution of India simply by a Presidential order {The constitution Application to Jammu & Kashmir Order, 1954 C.O. 48}  and not through the channels of constituent power enshrined in Art-368 of Constitution of India by   Parliament of India . Instead it is taken as added in COI  simply by a Presidential order  said to have been issued under the provisions  Art 370 (1-d) of  Constitution of India with the concurrence of state government. Hence  Article 35A is a new Article  added in Constitution of India  after Article 35  not by a valid constitutional amendment under Art-368. No doubt it has remained unquestioned for more than 6 decades..

Adding a new article in constitution is an act of amending  the constitution  and can not be taken refuge under sub clause (d) of clause (1) of Article-370 of Constitution of India, as has been the case with Article 35A of Constitution of India , since the scope of this clause ( 370-1d) is limited to only such of the other provisions of the Constitution of India that already exist in the Constitution of India  where as by  constitution application Presidential order  of 1954 C.O. 48 a new Article 35A has been added in  constitution of India (COI ).  And in case it is a new Article by is it not mentioned in the main body of the Constitution of India and is included in the Appendix –I only ? May be the ‘authors’ of this article were themselves not sure about it’s constitutional validity.

Although this aspect has not for about six decades attracted the attention of experts, but now since the possible constitutional inadequacies have been pointed out, adding a new article in the constitution can’t be taken  as simply nominating  some exceptions and modifications  w.r.t  some  provisions of the Constitution of India in relation to the Indian state of Jammu & Kashmir using the procedures/ provisions contained in Art-370 of COI.

The Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 that is said to have been issued in exercise of the powers conferred by clause (1) of article 370 of the COI, by order of the President,  so as  to add a ‘new’ Article 35A after Article -35 , is unconstitutional to the extent it says  4 (j)  : Part-III. After Article 35, the following new article shall be added, namelyc 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, 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.            

Better Mehbooba Mufti ji rises above  minor political ambitions and regrets what she has  said on this 28th July regarding discussions and  legal reviews that have been initiated as regards “Art35A” including the matters before the Apex court.                                                                          

 

Even within the  scope of sub- clause (d) of clause (1) of  Article 370  Art370 (1) (d) sayssuch of the other provisions of the Constitution shall apply in relation to J&K  State subject to such exceptions and modifications as the President may by order specify but an order  for  adding a ‘new article’ in the constitution can’t be defended or taken refuge  under such a provision ( Art 370 1-d ) since sub- clause 1d of Art 370  allows  only modification of some existing constitutional provision  and can not be used for amending the COI to the extent of even adding a new article. An act of adding a new article by Presidential order  like it  has been done in case of Art 35A  does not  fall in the class of modifying an existing provision.

In the PURANLAL LAKHANPAL Vs. THE PRESIDENT OF INDIA AND OTHERS case the apex court (Hon’ble Justice  GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N., GUPTA, K.C. DAS, AYYANGAR, N. RAJAGOPALA   Writ Petition No. 139 of 1957  under Art. 32 of the Constitution of India for enforcement of Fundamental rights. DATE OF JUDGMENT: 30/03/1961) held, that the word "modification" used in Art. 370(I) must be given the widest meaning in the context of the Constitution and in that sense it includes an amendment and it cannot be limited to such modifications as do not make any "radical transformation.  Where as in the case of Art 35A   the question is not of modification or even amendment of an existing constitutional provision but it is  a case of adding altogether a new article by amending the constitution. It is not a case where the President has ordered some exceptions and modifications of some  provisions of constitution of India that exist in the first constitution of India or have been incorporated in the COI  using constituent power contained in Article 368 by Parliament of India   at some later date for direct application with regard to Indian state of Jammu and Kashmir.  Similarly   in the Writ Petition No. 11 of 1968   under Art. 32 of the  Constitution of India for the enforcement of the fundamental rights, Sampat Prakash vs State Of Jammu & Kashmir & Anr   Bench BHARGAVA, VISHISHTHA HIDAYATULLAH, M. (CJ) SHELAT, J.M. MITTER, G.K. VAIDYIALINGAM in judgement delivered on 10 October, 1968 too  the Hon’ble SC had observed to go with the judgement delivered by a larger bench in the case Puranlal Lakhanpal v. The President of India,1962.

The apex court constitutional bench has observed in the case of Puran Lal Lakshanpal thus, in law, the word "modify" may just mean vary amend and when Art. 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify, it means that he may varyamend) the provisions of the Constitution in its application to the State of Jammu & Kashmir. We are, therefore, '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(1) 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 don’t make any "radical transformation. 

It is true that  Art 370  (1-d) says that  President may apply the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify but it can   be taken as  making reference only to the provisions that exist in the constitution and can not be stretched to modifying the constitution itself i.e adding some new article in the Constitution of India as has been done by adding a new article 35A in constitution of India  by issuing  the  constitution application to Jammu and Kashmir ) order  of 1954 C.O. 48 .Section-4(j) of the  CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 C.O. 48.  So, the very existence of Art 35A and its birth is put under a question mark being illegitimate.

The constitution application  to Jammu and Kashmir  order  of 1954 C.O. 48   had been so far put under question mark for it’s  being  unconstitutional and void on the ground that it damaged the basic structure of the Constitution by incorporating some unfair provisions in the shape of Art35A  but much above that it goes beyond to even  amending the COI.

Hon’ble supreme court has so far held the laws and provisions made in J&K discriminating between citizens of India who are Permanent Residents of J&K and those who are not  valid under the cover of ‘Art35A’ of Constitution of India even if it violates the fundamental rights of some as granted in part-III of COI . But the debate that was actively initiated by persons like the writer in 2009 is a question on the constitutional legitimacy of even the  birth of Art35A and there exist all reasons  for taking up this issue before the Apex Court for consideration by a larger Constitutional bench pleading that Clause (1) of Art 370 of Constitution of India confers no power of President of India  to amend the Constitution of India  simply with the concurrence of the Government of the State of Jammu and Kashmir so as to add a new article in the Constitution of India by the name Article35A after Article 35 of COI and such act is an amendment of the COI and only Parliament of India can do using the constituent power vested in Art 368 of Constitution of India. Hence before discussing good and bad of the text of Art-35A, the first need is to examine whether this Article even constitutionally exits?

 

Even within the  scope of sub- clause (d) of clause (1) of  Article 370  Art370 (1) (d) says such of the other provisions of the Constitution shall apply in relation to J&K  State subject to such exceptions and modifications as the President may by order specify but    an order  for  adding a ‘new article’ in the constitution can’t be defended or taken refuge  under such a provision (Art 370 1-d ) since sub- clause 1d of Art 370  allows  only modification of some existing constitutional provision  and can not be used for amending the COI to the extent of even adding a new article. An act of adding a new article by Presidential order,  like it  has been done in case of Art 35A,  surely does not  fall in the class of modifying an existing provision as far as my fair understanding is concerned .

In the PURANLAL LAKHANPAL Vs. THE PRESIDENT OF INDIA AND OTHERS case the apex court (Hon’ble Justice  GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N., GUPTA, K.C. DAS, AYYANGAR, N. RAJAGOPALA   Writ Petition No. 139 of 1957  under Art. 32 of the Constitution of India for enforcement of Fundamental rights. DATE OF JUDGMENT: 30/03/1961) held, that the word "modification" used in Art. 370(I) must be given the widest meaning in the context of the Constitution and in that sense it includes an amendment and it cannot be limited to such modifications as do not make any "radical transformation".  Similarly  in the Writ Petition No. 11 of 1968   under Art. 32 of the  Constitution of India for the enforcement of the fundamental rights, Sampat Prakash vs State Of Jammu & Kashmir & Anr   Bench BHARGAVA, VISHISHTHA HIDAYATULLAH, M. (CJ) SHELAT, J.M. MITTER, G.K. VAIDYIALINGAM in judgement delivered on 10 October, 1968 too the Hon’ble SC had observed to go with the judgement delivered by a larger bench in the case Puranlal Lakhanpal v. The President of India,1962. Whereas, with due respects to the opinions of Apex court,  in the case of Art 35A   the question is not of modification or even amendment of an existing constitutional provision but it is  a case of adding altogether a new article by amending the constitution. It is not a case where the President has ordered some exceptions and modifications of some  provisions of constitution of India ( that exist in the first constitution of India or have been incorporated in the COI  using constituent power contained in Article 368 by Parliament of India   at some later date ) for direct application with regard to Indian state of Jammu and Kashmir. 

The apex court constitutional bench has observed in the case of Puran Lal Lakshanpal thus, in law, the word "modify" may just mean "vary" amend, and when Art. 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify, it means that he may vary  amend the provisions of the Constitution in its application to the State of Jammu & Kashmir. We are, therefore, '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(1) 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 don’t make any "radical transformation.

Again with due regards to opinion of the Apex court the subject matter still needs a close review more as regards the ‘genuineness of existence  of Art-35A that it could be the contents of its text.  It is true that  Art 370  (1-d) says that  President may apply the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify but it can   be taken as  making reference only to the provisions that exist in the constitution and can not be stretched to modifying the constitution itself i.e adding some new article in the Constitution of India as has been done by adding a new article 35A in constitution of India  by issuing  the  constitution application ( to Jammu and Kashmir ) order  of 1954 C.O. 48  containing Section-4(j) regarding Art 35A  So, the very existence of Art 35A and its birth is put under a question mark being illegitimate.

The constitution application ( to Jammu and Kashmir ) order  of 1954 C.O. 48   had been so far put under question mark for it’s  being  unconstitutional and void on the ground that it damaged the basic structure of the Constitution by incorporating some unfair provisions in the shape of Art35A  but much above that it goes beyond to even  amending the COI unconstitutionally.

Hon’ble supreme court has so far held the laws and provisions made in J&K that discriminate between citizens of India who are Permanent Residents of J&K and those who are not  valid  for survival under the cover of ‘Art35A’ of Constitution of India even if it violates the fundamental rights of some as granted in part-III of COI . But the debate that was actively initiated by persons like the writer in 2009 is a question on the constitutional legitimacy of even the  birth of Art35A and there exist all reasons  for taking up this issue before the Apex Court for consideration by a larger Constitutional bench pleading that Clause (1) of Art 370 of Constitution of India confers no power of President of India  to amend the Constitution of India  simply with the concurrence of the Government of the State of Jammu and Kashmir so as to add a new article in the Constitution of India by the name Article35A after Article 35 of COI since such act is an amendment of the COI and only Parliament of India can do using the constituent power vested in Art 368 of Constitution of India. Hence before discussing good and bad of the text of Art-35A, the first need is to examine whether this Article even constitutionally exits?

Apex Court has on 17th July 2017  already referred references in Writ Petitions (Civil) 722/2014  to a larger 3 Judge Bench on validity of Article 35A. Hope the constitutional technicalities will surely attract the attention of the apex court worth referring  to a larger constitutional bench the text of C.O. 48 where it says :- “After Article 35, the following new article shall be added, namely:—35A.”.  And surely the new article 35A has been added in the Constitution of India. Adding a new Article in Constitution of India is amending the constitution of India and not just applying some  provisions of  the  Constitution of India  in relation to J&K  State  with some exceptions and modifications as the President may by order specify.

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