Article 35A

Article 35A – Making Fundamental Right a myth in the State of Jammu & Kashmir

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In this article, we focus on the provision of Article 35A of the Indian Constitution and discusses how Article 35A is making Fundamental Right a myth in the State of Jammu & Kashmir.

“If I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is, that Man was vile.

                                                                                                                                   Dr. B.R. Ambedkar

The recent debate over the validity of Article 35A of the Constitution is nothing less than a break from the past. I was consternated to see that Article 35A is not placed in the text of the Constitution instead it forms part of the same by way of an appendix to the Constitution. Before analyzing the genus of Article 35A in the Constitution the question arises,

“WHERE IS THE POWER TO ADD A PROVISION IN THE CONSTITUTION?”

The only provision which acknowledges the amendment in the Constitution is Article 368. However, Article 35A was not brought by an amendment under Article 368, it was added to the Constitution by way of a Presidential Order passed under Article 370 of the Constitution. But the Question is,

WHETHER THE PRESIDENT HAD SUCH POWERS UNDER ARTICLE 370 IN ORDER TO ADD A NEW PROVISION TO THE CONSTITUTION?

The Constituent Assembly on 17th October 1949 canvassed Article 370 (draft Article 306A), it was proposed by N. Gopalaswami Ayyangar in the following words:

“…. With regard to the other provisions in the Constitution, these will apply to the Jammu and Kashmir State with such exceptions and modifications as may be decided on when the President issues an order to that effect. That Order can be issued in regard to subjects mentioned in the Instrument of Accession only after consultation with the Government of the State. In regard to other matters, the concurrence of that Government has to be taken.

Now, it is not the case, nor is it the intention of the members of the Kashmir Government whom I took the opportunity of consulting before this draft was finalised – it is not their intention that the other provisions of the Constitution are not to apply. Their particular point of view is that these provisions should apply only in cases where they can apply the only subject to such modifications or exceptions as the particular conditions of the Jammu and Kashmir State may require. I wish to say no more about that particular point at the present moment. ….”

It is unambiguous from the above paragraph that the objective of the Constituent Assembly was never to grant powers, to the Legislature of Jammu & Kashmir or the President of India to devoid the residents of Jammu & Kashmir of the Fundamental Rights. In fact, the objective of Article 370 was to provide an opportunity to the State of Jammu & Kashmir to become capable of being governed by the Constitution of India, like the other states.

Article 35A was added by the President by way of the Constitution (Application to Jammu & Kashmir) Order, 1954 which provides that the State of Jammu & Kashmir will have powers, to grant special rights to the permanent residents of the State as defined by the State and the same cannot be challenged as violative of art III of the Constitution.  Thus, the Presidential order not only adds a provision in the Constitution which as per Article 370 cannot be done, but also grants protection to Article 35A of the nature as Schedule IX. A shield which cannot be penetrated as violative of any Fundamental Right enshrined in the Constitution.

The aftermath of Article 35A is such that the State of Jammu & Kashmir has formed laws which are gender discriminatory in nature. In the current sequence of events where the Supreme Court has declared the triple talaq as unconstitutional, granting the Muslim women, victory against the age old gender bias, it will undeniably be an interesting issue when the definition of permanent residents in the State of Jammu & Kashmir is hit by gender discrimination.

For e.g. if a man marries a woman who is not from Jammu & Kashmir, she automatically after such a marriage becomes a permanent resident of Jammu & Kashmir whereas if a woman marries a man who is not from Jammu & Kashmir she loses the status of permanent resident. This arbitrary law cannot be challenged as violative of Article 14 because of the protection under Article 35A as mentioned above. The special rights granted to a permanent resident are, employment under the State Government, acquisition of immovable property, settlement in the State and right to scholarship and such other forms of aid as the State Government may provide. So, if a woman from Kashmir marries a man who is not from Jammu and Kashmir or not a permanent resident of Jammu & Kashmir, she will be deprived of all the special rights under Article 35A.

In the recent petition filed by Charu Wali Khannabefore the Supreme Court, she rightly argues, that she can work or own a house/property in any part of the world except in the State where her roots lie.

The word “with such exceptions and modifications” used in clause 1 of Article 370 cannot be given such wide interpretation in order to make it capable of adding a provision in the Constitution more so when this is an executive power. The scope and extent of the Judicial Review on the Executive Power has already been decided by the apex court of this country in several landmark judgments. Though, it is suggested that the Constitutional validity of the 1954 Order has already been tested by the Constitution Bench of the Supreme Court not once but twice.

Initially, in Puranlal Lakhanpal v. President of India & Ors., (1962) 1 SCR 688, the question was whether the President can change the method of electing the members of the House of People from the State of Jammu & Kashmir by way of an indirect election instead of direct election. The Court answered in the affirmative and held that the change in the method of election is only a modification.

The second challenge to the Presidential Order, 1954 was in Sampat Prakash v. State of Jammu & Kashmir and Anr.(1969) 2 SCR 365 where the issues raised were of greater constitutional importance such as the applicability of Article 370 was temporary; that the President in the guise of modification cannot add a provision in the Constitution; and once Article 368 is made applicable to the State of Jammu & Kashmir, the power of President to amend the Constitution under Article 370 does not exist. Although, these arguments were not accepted by the Constitution Bench headed by the Chief Justice Hidayatullah (as he then was). But it has been 48 years ever since and the present Petitions filed in the Hon’ble Supreme Court are from the people who claim themselves to be Kashmiri. It is perhaps the right time when the Supreme Court should intervene in order to safeguard the Fudamental Rights of the people of Jammu & Kashmir. It is also apt because in our country, it has been an age old tradition that many political problems have been solved by the Judiciary and triple talaq is a recent example which is a big step towards our old dream of Uniform Civil Code in the independent India.

The Fundamental Right’s in this Country have been bolstered by the interpretations of the Supreme Court.  The conspicuous dissenting opinion of Justice Fazl Ali that Fundamental Rights are not isolated islands has become an established law subsequently. Interpretation making freedom of press an unenumerated Fundamental Right under Article 19(1)(a) and recently the unanimous decision declaring Right to Privacy a fundamental right shows the approach and the advancement this Country has made in becoming a nation committed to human rights (inclusive of Fundamental Rights).

Nevertheless, the Supreme Court will also have to face the challenges before it. If the Court holds that Article 370 does not grant powers to the President to amend the Constitution, it would consequently make a large portion of the 1954 Order unconstitutional which is a notable change in position of law existing from the last 60 years.

The Court might have to resort to prospective overruling devised by Justice Subba Rao in Golaknath’s case. Another issue of paramount importance would be; the view taken by Justice Nariman in the triple talaq case overruling State of Andhra Pradesh v. McDowell & Co., AIR 1996 SC 1627 which held that arbitrariness alone cannot be a ground to hold a law unconstitutional. Article 35A is an excellent example of the law which is prima facie arbitrary. If the view of Justice Nariman is taken as a good law being part of the majority opinion, then Article 35A can be held unconstitutional by this itself. Though, the ambiguity lies in the question “Whether the test of arbitrariness can be applied to a Constitutional amendment or not?” depending upon the conscience of the Court to consider Article 35A a valid provision of the Constitution.

Reference-

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