President's Order of May, the 14th 1954 read in some detail takes away to a large extent the autonomous status of J&K state that had formed the basis of temporary and conditional accessions in 1947. One after another, in 22 parts, it implies application of numerous articles of Indian constitution with exceptions and modification.
Article 35-A barely forms one the articles/clauses of Indian constitution included in President's Order. It falls in Part III (j) of the order with the words: After Article 35, the following new Article shall be added namely: —35 A. The emphasis on new article is clear; to set it quite apart from article 35. It is though pertinent to note that article 35 finds mention in Part III (i) with exceptions and modifications and addition of clause (c). It especially omits certain reference in clause (a) (i) of article 35 which empower the parliament and disempowers the legislature of a State to make laws with respect to certain articles of Indian constitution. The omission in President's order vis-à-vis article 35, clause (a) (i) is noted with the words: in clause (a) (i) the words, figures and brackets 'clause (3) of Article 16, clause (3) of Article 32' shall be omitted.
Article 16 refers to 'equality of opportunity in matters of public employment' clause (3) of the said article refers to the power of parliament to make laws vis-à-vis public employment. Article 32 pertains to 'remedies for enforcement of rights conferred by this part'. Its clause (1) refers to right to move Supreme Court, clause (2) to powers of Supreme Court and High Court to issue directions or orders or writs, while as clause (3) notes that without prejudice to the powers conferred on Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ).
Given the text of Articles 16 and 32, read with clause (3) of both these articles, their omission while referring to article 35 amounts to curtailing the powers of parliament in J&K state. On a simple reading of the omission, it forms a significant aspect of President's Order of 14th May 1954, given the fact petitions challenging Article 35-A base their objection on parliament having been bypassed, while framing the said article. In fact bypassing parliament is a constant refrain of the President's Order, 1954. In Part XX, the order refers to Article 368. It reads: To Article 368, the following proviso shall be added, namely:—'Provided further that no such amendments shall have effect in relation to the State of Jammu and Kashmir unless applied by the order of the President under clause (1) on Article 370'. This assumes significance, given the fact that petitions challenging Article 35-A constantly refer to Article 368 (pertains to parliamentary vetting of constitutional amendments).
We may take up the addition clause (c) to Article 35. It reads:
"No law with respect to preventive detention, made by the Legislature of the State of Jammu & Kashmir, whether before or after the commencement of the Constitution (Application to Jammu & Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this Part, but :any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of five years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof."
In a case before the Supreme Court, Sampat Prakash vs State Of Jammu & Kashmir in 1968, the petitioner challenged his detention under clause (c) of Article 35. One of the observation made in the judgment reads, ''On these facts, the point raised on behalf of the detenu was that these two modifications in 1959 and 1964, substituting "ten years" for "five years", and "fifteen years" for "ten years", were themselves void on the ground that orders making such modifications could not be validly passed by the President under Art. 370 (1) of the Constitution in the years 1959 and 1964.
On the legal ambit of modifications, applicable in Article 370 (1) the Apex Court ruled:
"Thus, in law, the word "modify" may just mean "vary", i.e., amend, and when Art. 370 (1) says that the President may apply the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify, it means that he may vary (i.e., amend) the provisions of the Constitution in its application to the State of Jammu & Kashmir. We are, therefore, 'of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word "modification" used in Art. 370 (1) and in that sense it includes an amendment. There is no reason to limit the word "modifications" as used in Art. 370 (1) only to such modifications as do not make any "radical transformation".
The five member bench of Bench of: Hidayatullah, M. (Cj), Shelat, J.M., Bhargava, Vishishtha, Mitter, G.K., Vaidyialingam, C.A. thus largely held the power of President constitutionally valid to affect modifications as he may by order specify in its application to the State of Jammu & Kashmir, as per Art. 370 (1).
Given the clear judgement, how and why the challenge, carried in various petitions, continues to be matter of worry, across the length and breadth of J&K state? The fact remains that it is being weighed by the powers that be in political rather than the legal scale.
Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]