Article 35A: Violating basic structure

For many law students at faculty of law (Delhi university), it was a matter of surprise to know on the other day that whether Article 35A really exist in Indian Constitution or a mere fallacy. Seminar hall was jam-packed, key speaker was the Solicitor General of India and the session went on for one hour, very soon the question answer round started, a student raised a question, Mam, 'Whether the President of India has the power to amend or insert any article into the constitution without taking the Parliament into confidence'? She replied candidly, yes, he has the power to amend the constitution but not without the Parliament’s consent.

He retorted: Mam, but an article 35A has been inserted in Indian constitution without the consent of Parliament. Much to his surprise, she said, I am not aware about this but if it has happened, we will look into it.

If this is the case with Constitutional experts in our legal fraternity, nothing more can be expected from the students of law who are studying law to socially engineer the society with their legal proficiency on matters concerning statutory rights of citizen.

What is Article 35A and How it was incorporated in our Constitution?

Article 35A was incorporated in Constitution of India through a Presidential Order, termed as Constitution (Application to Jammu and Kashmir) Order, 1954.

It is this article not article 370 which legitimizes any preferential treatment given to residents of Jammu and Kashmir over other citizens by J&K state assembly.

Article 35A  states , 'no existing law in force in state of J&K and no law hereafter enacted by the legislature of the state, conferring on 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;
3. Settlement in the State; or
4. 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.'

It is to be noticed here that this discriminative provision is not open to challenge as inconsistent with the rights guaranteed by Part III of the Constitution of India due to operation of 1954 Order.

Mr. Arun Jaitley (then Leader of Opposition): Should a provision like Article 35A which exists only because of Article 370 have place in any civilized society? It is oppressive against citizens of India. It is discriminatory and violative of fundamental rights. On a bare reading, it violates the basic structure of the Constitution. I wonder if its constitutional validity will be challenged at some point of time.

Powers of President of India.

It is a settled law that a Constitutional authority cannot do indirectly, what it cannot do directly. If there is a Constitutional provision inhibiting the Constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the Constitutional provision. Thus power given to the President under Article 52 of the Indian Constitution cannot be allowed to be perverted to serve political ends.

Though President is invested with legislative power, but only in order to tide over an emergent situation, which may arise whilst the Houses of Parliament are not in session. Thus President cannot issue an Order, which is beyond the legislative competence of Parliament, therefore legislative power conferred on the executive by the Constitution makers was for the necessary purpose and hedged by limitations and conditions.

Under Article 70 of the Indian Constitution , Parliament may , make such provisions as it thinks fit for the discharge of the functions of President in any contingency not provided in the constitution. But as per reply of an R.T.I from Ministry of Home affairs, no such provision had been made by Parliament in regard for issuance of Constitution (Application to Jammu &Kashmir) Order, 1954.

Effects

Article 35A is acting as a hindrance in complete development of J&K, affecting every sector of State’s administration. Present situation is that there is no faculty in Engineering colleges, Medical colleges. No professor want to go and teach in Jammu and Kashmir from outside the State because he cannot purchase house for him there, his children cannot get admission in professional colleges, no government service to his children. Today faculty is to be created from within the state, which is not enough.

Another instance can be taken of refugees, who migrated in the state of Jammu and Kashmir in 1947 from West Pakistan and residing in the state for nearly 68 years, but still treated as a second class citizen of the state. They are considered to be an Indian citizen but not the citizens of the State. They are disentitled to be on the electoral rolls of the State assembly. Not only this, they are denied many basic amenities and civil rights, which other Indian citizens have in other parts of the country, such as, the right to acquire any immovable property in the State, the right to employment under the State, right to start an industry, purchase a motor vehicle.

Judiciary Stand

The end result is that WPR are though citizens of India, they are not in a position to enjoy many of the rights within the State of J&K, though they are domiciled in the State for nearly seven decades. On the other hand, those who had migrated to Pakistan in 1947 and now choose to return to the State of J&K again, appear to stand in a better position because State Government count the latter as Hereditary State Subjects.

Supreme Court in Bachan Lal Kalgotra V. State of Jammu & Kashmir and Others  SCC 1987 held 'In view of the peculiar Constitutional position obtaining in the state of Jammu and Kashmir, we do not see  what possible relief we can give to the petitioner (West Pak Refugees) 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 upto the legislature of the State of Jammu and Kashmir to take action to amend legislature.'

Apex Court, Guardian of the Constitution of this country was not expected to pass the buck to state legislature of Jammu and Kashmir, at least in cases where there is manifest illegality and palpable injustice is shown to have resulted.

Constitution under Article 142 gives the Supreme Court, the power to exercise its jurisdiction by issuing a decree or an order in such a way as is necessary for doing complete justice in any cause or matter pending before it and any decree or order so passed shall be enforceable throughout the territory of India.

The author can also be reached at jamtanip@gmail.com