Relevance: GS Paper II
Why has this issue cropped up?
Can Article 35A of the Constitution be struck down? If yes, should it be? These questions have been raised in a petition filed in the Supreme Court.
Understanding article 35 A
- Article 35A was inserted into the Constitution as part of a raft of amendments made through a 1954 presidential order, imposed under Article 370.
- Broadly, it empowers Jammu and Kashmir (J&K) to not only define a class of persons as constituting “permanent residents” of the State but also allows the government to confer on these persons special rights and privileges with respect to matters of public employment, acquisition of immovable property in the State, settlement in different parts of the State, and access to scholarships or other such aids that the State government might provide.
- The Article further exempts such legislation from being annulled on the ground that they infringe one or the other of the fundamental rights guaranteed by the Constitution.
- According to the petition filed in the Supreme Court, this immunity granted to J&K’s laws is discriminatory, and, therefore, Article 35A should be declared unconstitutional.
Understanding Article 370
- A proper reading of the text of Article 35A, and its constitutional history, will establish that the present petition is meritless; that Article 35A is not amenable to a conventional basic structure challenge.
- India’s Constitution establishes a form of asymmetric federalism, in which some States enjoy greater autonomy over governance than others. This asymmetry is typified by Article 370. Article 370 accorded to J&K a set of special privileges, including an exemption from constitutional provisions governing other States.
- In accord with J&K’s Instrument of Accession, Article 370 restricted Parliament’s powers to legislate over the State to three core subjects: defence, foreign affairs and communications .
- Parliament could legislate on other areas only through an express presidential order, made with the prior concurrence of the State government. Where those subjects went beyond the Instrument of Accession, the further sanction of the State’s Constituent Assembly was also mandated.
- Finally, the Article also granted the President the power to make orders declaring the provision inoperative, but subject to the condition that this authority could be exercised only on the prior recommendation of the State’s Constituent Assembly. However, with the disbanding of J&K’s Constituent Assembly in 1956, the question of suspending Article 370 was rendered moot. In the process, the asymmetry in India’s federalism was fortified.
- That this is the case can also be gleaned from a reading of Article 368, which contains the ordinary powers of constitutional amendment as applicable to other parts of India. One of the provisos to the clause makes it clear that changes made to the Constitution under Article 368 will not mechanically apply to J&K. For such amendments to apply to the State, specific orders must be made under Article 370, after securing the J&K government’s prior assent. Such amendments will also need to be ratified by the State’s Constituent Assembly.
Arguments given by the petitioner
The petitioner in the Supreme Court now makes two basic arguments.
- Article 35A, it claims, could not have been introduced through a process outside the ordinary amending procedure prescribed under Article 368.
- Even assuming that the President possessed this power, the petitioner asserts, Article 35A infringes the Constitution’s basic structure.
Can Article 35A be declared unconstitutional?
- The claims, however, suffer from fundamental flaws. As we have already seen, Article 370 is as much a part of the Constitution as Article 368.
- That the presidential order incorporating Article 35A, is without legal authority is an argument that is destined to fail.
- It is equally fallacious to suggest that Article 35A can somehow be subject to a basic structure challenge. 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.
Conclusion
Kashmir’s conditions are special and require special treatment. Gulzari Lal Nanda aptly said that Article 370 represents the only way of taking the Indian Constitution into J&K. It is a tunnel and it is through this tunnel that a good deal of traffic has already passed and more will.
