There exist all requirements for placing the questions on Art 35A before a Constitution Bench

21 Aug 2017 11:49:37


Daya Sagar

There exist all reasons for taking up the issue of existence of Art35A  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 on 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 action  is an amendment of the COI and only Parliament of India  and not he President can do so by 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 ( Article 35A)  even constitutionally exits , is not it  ultra vires to the procedure? It is the question of very existence of Art35A that has made  some local leadership so ‘restless’.

Making references to a petition before Supreme Court of India that is challenging very existence of Art35A so strangely some prime Kashmiri leadership has gone to the extent of saying that Art35A was slated in 1954 for preserving the muslim majority character of J&K in independent India . This is not fair and exposes all those who had been holding reigns of governance in J&K and have been pushing provisions installed  by the State under the cover of Art 35A in more and more unnecessary controversies  than taking out some thing good for the people of J&K ( permanent residents of J&K). A recent petition filed against Art35A in supreme court of India by Ms Charu Wali  , a woman permanent resident of J&K  has been the result of unfair working on the part of J&K Government / legislature inspite of there being provisions available to make corrections/ improvements in the drafts prepared earlier


Briefly it could be said that under the provision of Art35A the very existence which has been questioned,    the J&K State can define   the classes of persons who are, or shall be  Permanent Residents of the State of Jammu and Kashmir  or  State  can confer  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, and that shall not 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 Part-III of COI. On face of it sounds happy atleast for those citizens of India who are classified as the Permanent Residents of J&K in Section-6 of J&K Constitution.

  An order ( C.O 48 of 14-05-1954 ) by the President of India  for  adding a ‘new article’  in the Constitution , as has been the case with Art 35A, can’t be defended or taken refuge  under the provisions contained in Clause 1d of Art 370  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 like Art 35A. An action 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. { sub- clause (d) of clause (1) of  Article 370   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.. } 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 on 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 so by 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 had on 17th July 2017 referred references in Writ Petitions (Civil) 722/2014  to a larger 3 Judge Bench on validity of Article 35A. I had said and hoped  on 3rd August in  a write up that 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 { THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 ::  } where it says :- “{    (4-j)  After article 35, the following new article shall be added, namely:— “35A…..} .  And it has been on 14 August 2017 that while hearing another petition ( filed by Charu Wali Khanna, challenging Article 35A of the Constitution and Section 6 of the Jammu and Kashmir Constitution which deal with the “permanent residents” of the state.  a two judge bench of Apex Court  (  Justices Dipak Misra and AM Khanwilka has tagged the Charu Wali   petition also to the 3 Judge Bench that shall be considering the validity of Art 35A. During the hearing, Additional Solicitor General P S Narasimha had informed the bench that a similar petition  challenging Article 35A exists in another plea filed by a Delhi-based NGO 'We the Citizens' which has been referred to a three-judge bench.

The bench headed by Justices Dipak Misra and A M Khanwilkar has also said “   We really feel the issue should go to five-judge constitution bench but that has to be decided by a three-judge bench. If Article 35A violates the basic structure of the Constitution or if it ultra vires to the procedure, then the issue may be dealt by a five-judge bench”.

Earlier it was on 17 July 2017 that The Supreme Court Bench of  Chief Justice J.S. Khehar and D.Y. Chandrachud referred a petition related to Art35A (  2014 PIL by We The Citizens, an NGO, had called for quashing the  Article 35A which, it said, was unconstitutional  pleading that a new Article to the Constitution cannot be simply aided by a presidential order as has been done in 1954 in the case of 35A and according to the law, only the Parliament can amend the Constitution )  to larger bench after attorney-general K.K. Venugopal told the court that it would not be proper for a two-judge bench to determine such a very sensitive issue. After hearing all sides, Chief Justice Khehar referred the case to the three-judge bench to be taken up after  six weeks. Request had been made for even 5 Judge Bench. Hope it will now go to constitution bench and decision will be surely taken without any unfair political pressures. Mehbooba Mufti has said that she has got 100 percent assurance from Prime Minister that Art35A ( “special status”) will stay, how has she attributed such an assurance to the person of Prime Minister when the case is before Supreme court is beyond any judicial imaginations. Ofcourse no any denial or acceptance has come from Prime Minister as regards CM’s claims. In in case what she has said is true then only thing possible is that some thing new may be given to her government by the Parliament after some adverse decision comes from the Apex Court. Any how she has tried for correcting her challenging approach ( what she said on 28th July ) as she has also been quoted as having said that she has full faith in Supreme court of India.

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