Art 35 A and the Constitution

what is Constitution? It is the country’s supreme law and not only defines the framework of the basic political principles, but also establishes what the different government institutions should do in terms of procedure, powers and duties.. It contains fundamental rights, directive principles and the duties of citizens.In his book Making of India’s Constitution, a well-known Supreme Court judge Justice H.R. Khanna wrote that the people are the trustees and custodians of the values in the Constitution. “A constitution is not a parchment of paper; it is a way of life. Eternal vigilance is the price of liberty and, in the final analysis, its only keepers are the people.”

Following quote by Patrick Henry, an American lawyer and politician, sums up the power of a Constitution best: “The Constitution is not an instrument for the government to restrain the people; it is an instrument for the people to restrain the government.”

One of the salient features of Indian Constitution is that it is rigid but flexible as well.

Both elements are present i.e. rigid as well as flexible. Article 368 provides for multiple ways for amending the constitution.

The Indian Constitution can be amended by following three ways:

By Special Majority of Parliament :Majority of total membership of each House as well as majority of 2/3rd members of each House present and voting. Provisions like Fundamental Rights, Directive Principles of State Policy can be amended in this fashion

By Special Majority of Parliament and Consent of States : Special Majority as well as consent from at least 50% of the State Legislatures(by a simple majority). Provisions related to federal structure can be amended in this fashion like election of President, amendment of Seventh Schedule etc

By Simple majority of Parliament :Majority of members present and voting. Provisions like establishment of new states, Second Schedule etc can be amended in this fashion.

The parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution. Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution. So did the President act outside his jurisdiction? Is Article 35A questionable because the Nehru government did not place it before Parliament for discussion? A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the President’s powers under Article 370 to ‘modify’ the Constitution. Though the court observes that the President may modify an existing provision in the Constitution under Article 370, the judgment is silent as to whether the President can, without the Parliament’s knowledge, introduce a new Article. This question remains open and thus questionable as well.

Now let us examine Art 35 A

,it says “Saving of laws with respect to permanent residents and their rights. — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:[10]

(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or

(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—

(i) employment under the State Government;(ii) acquisition of immovable property in the State;(iii) settlement in the State; or(iv) 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.”

In : I.R.Coelho V. State of Tamil Nadu AIR 2007 SC 861

(What adds to its importance is the fact that, IR Coelho was decided by a nine judge bench, headed by Y.K. Subharwal, C.J.I, after a reference being made to it by a five-judge bench, gave a unanimous decision.)SC ruled that … a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder…

On examination of Art 35 A it not only violates the Golden triangle but also Art 15 and Art 16 as well…

How…?

1.The case, State of Jammu and Kashmir versus Dr Sushila Sawhney and Ors (2002)stated that the daughter of a permanent resident marrying a person outside the state would not lose the status of permanent resident of Jammu and Kashmir.Prior to that a femake marrying a non statesubject holder would lose her status of being a statesubject and thereby their right of unheritence as well.

However, after the Sushila Sawhney case, neither did the Parliament make an effort to explicitly change the language of the provision, nor did any organ of the government issue a clarification on the same.

Moreover, the Sushila Sawhney judgment talks about women’s permanent status in the state but leaves out the fate of her children, and the present case seeks to do just that, and as an illogical and sexist extension allows the violation of the right to property of the female citizens who choose to marry ‘non-state subjects’.

While the lawful descendants of such matrimony are absolutely denied the right to inherit property from the state or apply for scholarships or any other welfare schemes, the male members who choose to marry outside the state are granted with naturalised citizenship for their spouses and children, thus highlighting the patriarchal notions of this law and clear violation of Art14,19 and 21.

2.It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste and Scheduled Tribe people who have lived there for generations. The Valmikis who were brought to the state during 1957 were given Permanent Resident Certificates on the condition that they and their future generations could stay in the state only if they continued to be safai-karmacharis (scavengers). And even after six decades of service in the state, their children are safai-karmacharis and they have been denied the right to quit scavenging and choose any other profession.

3.It ruins the status of West Pakistan refugees and Gorkha community Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu and Kashmir, they cannot enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu and Kashmir.

Thus in both cases whether constitutionally or in violating the inallienable  rights confered under art 14,19 and 21 the contentious art is a fit case to be scanned through the process of judicial review.

In defence of Art 35A it is potrayed that

‘If Article 35A goes, all Presidential Orders from 1950-75 will go’

First and foremost what is being challenged is the constitutionality of a provoso brought into through a Presidential order into the constitution and not the exercise of powers of President in accordance to art 370 (1) and secondly if at all Art 35A is repealed or abbrogated Doctrine of Eclipse which is self explanatory it says that a law which violates Fundamental Rights is not nullity or void ab initio but becomes only unenforceable. This doctrine has been incorporated in Art 13 and is valid for post constitution laws as well along with the Doctrine of severability i.e. It is not the whole Act which would be held invalid by being inconsistent with Part III of the Constitution but only such provisions of it which are violative of the fundamental rights, provided that the part which violates the fundamental rights is separable from that which does not isolate them.

2 Comments

  1. somethin gud is being nailed by u mam ..d more efforts pyk dis r needed on dis way to help ppl understand it in better way..wot article35-A n 370 are ..n fr their benefit n states as well

  2. Rakesh Pandita

    Constitutional position beautifully explained .it is discriminatory on many grounds though there will be counter arguments based on the complusions and conditions prevailing at that time . The integaration of J&K with IndiaI was not as smooth as it was with other princely states . English were interested in handing over the state to Pakistan so it was a give and take situation to buy the loyalty of Kashmiris .. Withdrawing it will be betrayal though an ammenament to the extent of addressing the anomalies as pointed out in the article can be a fair game .

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