Article 370(1-d) was surely not for amending the Constitution of India
Daya Sagar
The ‘so’ called very ‘controversial’ Art-35A was neither added in Constitution of India by the Constituent Assembly of India (COI) nor was it added by the Parliament of India using the constituent powers available under Art-368 . Art 35A was taken to have been added simply by an order of the President of India ( C.O 48 of 14 May 1954)by making use use of Art-370.This Article was neither part of Art35 nor did this article exit in the main body of the constitution of India before Art-36. This Article was taken as added in COI through the medium of The Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 as made by President of India as a ‘New ‘Article in exercise of the powers conferred on President by Clause (1) of Article 370. Article 35A has not been mentioned in the main text of the Constitution of India ( COI) but has been mentioned only in Appendix -I of the Constitution as one of the items of the Constitution (Application to Jammu and Kashmir) Order of the President of India of date 14 May 1954.
Many questions could be raised on the ‘birth’ of this order like when this article was added as a new article why was this article not mentioned in main body of the Constitution before Article 36 or after Article 35 ? Why this article had been numbered as 35A ?Why Art-370 had been used to amend the Constitution since Art- 370 nowhere delegated such power to President for amending the COI since adding a new article in the constitution was amending the constitution and not a simple modification of / with some exceptions of existing provisions ?. But no such questions were asked and were in public domain atleast till 2011.References of this order were made w.r.t to affairs in the Indian state of J&K and the contents of this article were questioned by some but for some other reasons.
But, the said order C.O 48 of 14 May 1954 as far as elements like Art 35A were concerned could be even contested as constitutionally invalid since Art 370(1) did not empower the President of India for amending COI so as to add a new Article like 35A since adding a new article is an act of amending of constitution and the action cannot be defended by taking refuge under even sub clause (d) of clause (1) of Article-370 of Constitution of India since the scope of this sub-clause ( 370-1d) was limited to only such of the other existing provisions of the Constitution of India that already existed in the Constitution { Art370 (1) (d) ..such of the other provisions of the Constitution shall apply in relation to J&K State subject to such exceptions and modifications as the President may by order specify}where as vide constitution application order of 1954 C.O. 48 [4(j) said : After Article-35, the following new article shall be added, namely: – “35A. Saving of laws with respect to permanent residents and their rights.- …. } a new article namely Article 35A was taken to have been Art-35A had remained in discussions for quite some time after 1954 but it was more since this article did not allow protection of all fundamental rights of some citizens of India in the State of J&K who did not fall in the category of the Permanent Resident of J&K State in case the state government or state legislature made some laws to benefit only those Indian citizens who were included in the category of permanent residents of J&K like laws / rules as made regarding right to join state government service , right to own land in J&K, right of admission in government professional colleges in J&K, only permanent residents of J&K could vote for J&K Assembly elections . The questions were mostly raised by people who did not belong to J&K initiallyfor about4 decades of issue C.O.48 more on the shelter provided by Art-35A to unfair laws / rules made by the J&K State .
Although such bads / short coming as were pleaded by some even before the Courts were in a way indirectly acknowledged as irregularities / discriminatory but simultaneously inability for granting any relief was expressed even by court taking that provisions made in J&K as constitutionally protected under Art35A as hadalso been said in the judgement in the case Bachan Lal Kalgotra vs State Of Jammu & Kashmir And Others { 20 February, 1987- Equivalent citations: 1987 AIR 1169, 1987 SCR (2) 369)}…. ( <“It is to be noticed here that these provisions are not open to challenge as inconsistent with the rights guaranteed by Part III of the Constitution of India because of “the Constitution (Application to Jammu & Kashmir) Order, 1954″ issued by the President of India under Art. 370(1)(d) of the Constitution by which Art. 35(A)was added to the Constitution in relation to the State of Jammu & Kashmir.” … ” In the circumstances, in view of the peculiar Constitutional position obtaining in the State of Jammu & Kashmir. We do not see what possible relief we can give to the petitioner 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 up to the Legislature of the State of Jammu Kashmir to take action to amend legislature, such as, the Jammu & Kashmir Representation of the People Act, the Land Alienation Act, the Village Panchayat Act, etc. so as to make persons like the petitioner who have migrated from West Pakistan in 1947 and who have settled down in the State of Jammu & Kashmir since then, eligible to be included in the electoral roll, to acquire land, to be elected to the Panchayat, etc. etc” … “In regard to providing employment opportunities under the State Government. it can be done by the Government by amending the Jammu & Kashmir Civil Services, Classification of Control and Appeal Rules. In regard to admission to higher technical educational institutions also, the Government may make these persons eligible by issuing appropriate executive directions without even having to introduce any legislation. The petitioners have a justifiable grievance.”..).}
After that even some considering permanent residents of J&K / social activists / analysts too seriously took notice of some of the laws / rules that were even violating the fundamental rights of some of the Indian citizens who were also permanent residents of J&K like the PR woman of J&K who were indirectly denied to chose her life partner with independent choice ( in case she married a non permanent resident Indian citizen her husband & children will not become eligible for category of permanent residents of J&K), there was no political reservation for the ST permanent residents of J&K in the Legislative Assembly. Some suggestions were made to the local governments / legislators for atleast removing the disadvantages in the local laws that were affecting even some permanent residents of J&K for which there were existing provisions in J&K Constitution / with the government for applying corrections but unfortunately no attention was paid for that since some politicians ‘appeared’ using such negative laws more to project that J&K had some special position in comparison to other states which in reality was not. So after 2010 many permanent residents of J&K too started suggesting for removing / amending Art-35A. It was after that that serious notice of the possible constitutional inadequacies regarding Art-35A was taken like adding a new article in the constitution could not be any more taken as simply nominating some exceptions and modifications w.r.tsome provisions of the Constitution in relation to the Indian state of Jammu & Kashmir and the manner it was added. Continued
(The writer is Sr Journalist & analyst of J&K Affairs.)