Article 35-A facing challenge!

Revoking it would mean pushing the state into a chaos

Manzoor Ahmad Ganai
Srinagar, Publish Date: Aug 22 2017 10:03PM | Updated Date: Aug 22 2017 10:03PM
Article 35-A facing challenge!File Photo

The special protection and privileges available to the permanent residents of J&K State are protected by Article 35-A of the Indian Constitution. The Article is under challenge before the Hon’ble Supreme Court of India. The debate about the constitutionality of this article which is initiated in the Hon’ble Supreme Court following the writ petition challenging the constitutionality of the said Article has generated a debate in the state. 

The basic design behind this attempt to get the Article 35-A struck down is also relatable to Sham Mukherjee’s slogan of “Ek Vidhaan Ek Nishaan Ek Pradhaan”, which is aimed at total integration of the State of J&K with the rest of the country, of which an echo was heard when the GST Bill was passed by the Legislature of the State of J&K and the Finance Minister of India Arun Jaitley related this financial integration to the Sham Mukherjee’s dream (don’t know about Mr. Drabu’s dream, the State Finance Minister). Although, he is on record to have said already that Article 370 of the Constitution of India is an obstruction in many ways).

Coming to the main challenge of the petition to the constitutional validity of Article 35-A of the Indian Constitution is that the President of India while exercising powers under Article 370 Clause (1) has exceeded his powers by adding a new Article to the Constitution of India in the form of Article 35-A. The contention of the petitioner is that the jurisdiction of the President of India his powers under Article 370 (1) have been overstressed unduly and unconstitutionally in this matter.

The petitioner further contends that the constitution (application to J&K Order 1954 CO 48) as it relates to Article 35-A amounts to amending the constitution of Indian through an executive order while the clause 1 of Article 370 nowhere confers or delegates any such power onto the President of India. The Petitioner’s case is that it is only the Parliament that can amend the Constitution of India in exercise of its constituent powers and it is the Parliament alone that can delete, add or repeal any Article of Constitution of India that too under Article 368 of the Indian Constitution without violating the basic structure of the Constitution and thus amending the Constitution of India and adding a new Article by an executive order is violative of the Constitution of India as the President of India has no such power as he has exercised while passing the Constitutional (Application to J&K Order 1954 CO 48).

Article 370 (1) says, “The President may apply the provisions of Constitution of India to the State of J&K with such exception and modification as he may by order specify”. It is here where the petitioner tries to build a case for judicial intervention when he contends that the power of the President to “modify” does not include power to amend the Constitution or to add a new Article to the constitution. Thus, he contends that the addition of Article 35-A is totally beyond the powers of the President.

When the petition came up for hearing before the Hon’ble Supreme Court, the State of Jammu & Kashmir filed response opposing the maintainability of the petition on various grounds. The response of the state it appears is full of substance. The state of J&K has rightly contended that the legal points/issues raised in the petition are no longer relevant as these have been considered and rejected by the Hon’ble Supreme Court in 1961 in the case of Pural Lal Lakhanpal Vs President of India and in 1970 in the case titled Sampat Prakash Vs State of J&K.

It is important to note that both these judgments delivered by the Hon’ble Supreme Court are by a bench of five judges each and in one of the cases the bench was headed by Hon’ble Chief Justice Hiddaytullah as he then was. The two judgments referred to hereinabove hold the field till date and as such any decision to the contrary will have to be delivered by a larger bench, as the law laid down in above two judgments cannot otherwise be altered.

Now, coming to the star point raised in the petition, which is pending in the Hon’ble Supreme Court at present, according to the petitioner is that the Constitution of India cannot be amended by an executive order passed by the President and the President cannot add a new provision to the constitution of India. What is interesting is that the scope and ambit of powers of President under Article 370 (1) have already been considered by the Hon’ble Supreme Court in the above two mentioned judgments i.e. Puran Lan Lakhanpal and Sampat Prakash, and the Hon’ble Supreme Court has held that “modification” as used in Article 370 in the context of constitution includes an amendment as well, and the court held that we must give the widest effect to the meaning of the word modification as used in Article 370 (1). The five member bench has further held that there is no reason to limit the word as used in Article 370 (1) only to such modification as do not make any radical transformation. The bench further held it seems to us that when the constitution used the word modification in Article 370 (1) the intention was that the President would have the power to amend the provisions of the constitution if he thought fit in their application to the State of J&K.

The Judges have also taken note of the object behind enactment of Article 370 and have said that the object behind enactment of Article 370 (1) was to recognize special position of state of J&K and to provide for that special position by giving powers to the President to apply the provisions to the Constitution to the State with such exception and modifications as the President may by order specify. The bench has further held that the power is given to the President to efface in effect any provision of the Constitution, altogether in its application to the State of J&K. It seems that when he is also given power to make modifications that power should be construed in its widest possible amplitude. The Hon’ble Supreme Court has further held if he could efface a particular provision of the constitution altogether in its application to the state of J&K. We see no reason to think that the constitution did not intend that he should have power to amend a particular provision, in its application to the State of J&K. It seems to us that when the constitution used the word “modification” in Article 370 (1) the intention was that the President would have the power to amend the provisions of the constitution. If he so thought fit in their application to the State of J&K.

The ratio laid down in Puran Lal Lakhanpal case was followed by the Hon’ble Supreme Court in Sampat Prakash Vs State of J&K as stated herein above and here also int his case the five judges of the Hon’ble Supreme Court again held the word “modification” as used in Article 370 (1) in the context of Constitution, “we are therefore of the opinion that we must give widest effect to the meaning of word modification used in Article 370 (1) and in that sense it includes power to amend the constitution. Thus, the legal position that emerges from the two decisions rendered on the subject by the Hon’ble Supreme Court is that the Article 35-A cannot be done away with on the count that it’s a creation of a Presidential Order or violative of any provision of the Constitution of India.

Be that as it may, I think the history of accession of the State of J&K to the Union of India and the various stages and phases thereof should also be taken into consideration in the present discussion which is purely legal in its nature. One can safely say that the events that preceded the accession of J&K State to the Union of India gave ample reason to the Leadership of the State of J&K and the Govt. of India to think of a special constitutional arrangement for the state of J&K. After all, the State of J&K went ahead with the accession to Union of India against the two nation theory which resulted in creation of Pakistan and wherein it was implicit that the Muslim majority state would be a part of Pakistan. Therefore, the accession of State of J&K with the union of India gave ample reason to the Leaders on both sides to have special constitutional status in place for the State of J&K.

The situation of the State of J&K continues to be perilously fragile. Any attempt to do away with Article 35-A will be perceived as a measure to carry out the demographic change of the J&K state and will further add to the chaos and confusion.

 

(Manzoor Ahmad Ganai  is Advocate at J&K High Court, Srinagar)