Article 35A: Manifesting illegality

06 Feb 2018 13:12:33

 


On 14th May 1954 President of India issued an order called Constitution (Application to Jammu and Kashmir) order 1954. Several presidential orders had been issued from time to time regarding Jammu and Kashmir previously. New order superseded the old ones. As is evident such orders are issued for clarification of application of laws and provisions of an already existing Article. In this case it was Article 370 passed by the Parliament of India in due procedure. Apart from the fact that this order contained some draconian provisions and amended various other articles of the constitution.  It was placed in the statute book without bringing the Article to the notice of the Parliament of India. Although the article was named as Article 35A it was not placed immediately after the Article 35, but was put outside the main body of the statute book. It appears to be a deliberate attempt to hide the piece of legislature from the legal as well public attention. If that was the purpose the promoters did succeed for a pretty long time. Even the practicing lawyers and law students were not aware of any Article 35A two years ago, which  was never passed  or discussed by the parliament, which is the only place where any  amendment to the constitution can be approved.

 

Article 368 lays down the procedure to make amendment to any existing article, addition, alteration or deletion. An amendment of the constitution may be initiated only by introduction of a Bill for the purpose in either house of Parliament. It has to be passed by not less than two third of the members in both the houses. Presidential order 1954 was not presented in the form of a bill in any house, nor was the parliament informed that such an article is being introduced in the constitution without going through the due procedure. It is interesting that constitution of India does not put a limit to the amending powers of the parliament. It says, “There shall be no limit to whatsoever on the constitutional powers of the parliament to amend.” But presidential   order 1954 gives a different story.  It has added a proviso to article 368 which says that “provided further that no such amendment shall have effect in relation to the state of Jammu and Kashmir unless applied by order of the president under clause (1) of Article 370.”

 


It is clear that, the president of India does not have power to insert an article into the constitution of India except through presenting a Bill for the purpose and getting it passed through a set procedure, that is by passing it with two third majority in both the houses of parliament. Yet an entirely new Article was introduced which says:

 

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 here after 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-    

  1. Employment under the State Government,
  2. Acquisition of immovable property in the state,

          iii. Settlement in the state or     

  1. Right to scholarships and such other forms of aid 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”

Presidential order issued for the purpose of application of already existing Article cannot be converted into constitutional amendment without going through due process in the parliament. Under subsection (1) of the article 370 enables the President to  issue an order with concurrence of the Government of Jammu and Kashmir for enabling of passing  laws on matters other than those matters that correspond to three subjects, Defense, External Affairs and Communication . But subsection (1) of the article 370 neither empowers the president to bring about any amendment to the constitution of India i.e. insertion of a new article in itself, nor to abridge fundamental rights of any citizen of India.

 

 

 

[This article is an extract from the book “Article 35A – Face The Facts” authored by Sh. Jawahar Kaul. Further chapters of this book will be covered later in a series.]

 

 

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