November 1, 2020

Scrapping Of Article 370 & Article 35A Is Constitutional

It was like living in a divorce state, trembling silence sited around gauges, armed men’s tearing terror garages, foreign breeze drifted streets wild sounds, social news dipped into rhetoric grounds, governing officers enforced laws & orders, optimists glad for radical reformers, amending folks bestowed peace of mind. Let’s pray for new dusk to shine.

Article 35A is a part of history now 05 Aug, 2019 will mark as a red letter day in history when the BJP Government headed by Shri Narendra Modi took a decision to snap Article 370 by issuing a Presidential Notification, bill was presented in Rajya Sabha on the same day & passed, also passed in Lok Sabha & got Presidential assent. Now Jammu & Kashmir will become a Union Territory with Legislative Assembly & Ladakh region is separated & become a Union Territory without Legislative Assembly. Although Article 370 will remain in the Constitution having 1 part which says “Jammu & Kashmir is an integral part of India”. This part will have no negative repercussions in the Constitution.

Article 02 & Article 03 of the Constitution of India now becomes applicable to Jammu & Kashmir with this Presidential Order. It requires two steps. First, the approval by the State Assembly and secondly, approval by the President, and as a method of Constitutional Law, the State Assembly is dissolved so Parliament performs the function of State Assembly and so it is performed.

It may be a political question as it is right or wrong?

I feel it was the only way to do this because it’s very well to say that you can have consultations but positions are so hardened on this issue that to suggest the matter to be dropped into public & take a solution, it would be a theoretical argument. If the government had to do it, it had did this way.

First of all we will pay attention on the meaning and scope of Article 370 and Article 35A.

Article 370 acknowledges the special status of the State of Jammu & Kashmir in terms of autonomy & its ability to formulate laws for the State’s Permanent Residents. In the year 1954 Presidential Order, among other things, the Fundamental Rights in the Constitution of India were made applicable to Jammu & Kashmir with exceptions.

Basically, it was the basis of Jammu & Kashmir’s accession to the Indian union at a time when erstwhile Princely States had a choice to join either India or Pakistan after their independence from the British Rule in 1947.

Article 35A allows the Jammu & Kashmir legislature to define permanent residents of the state. It was inserted through the Constitution (Application to Jammu & Kashmir) Order, 1954, which was issued by the then President Dr. Rajendra Prasad under Article 370, on the advice of the (Nehru-led Union Government).

Now we should talk about some interesting facts or rather the truth of these Articles.

Has anyone noticed that Article 35A is against the very spirit of oneness of India as it was creating a class within a class of Indian citizens? It is submitted that Article 01 of the Constitution of India states that “India i.e. Bharat shall be a union of states” & if this is the case then why people of Jammu & Kashmir have such rights & rest of the Indians are considered as 2nd citizens in Jammu & Kashmir as only the permanent residents can have right to acquire immovable property, govt. jobs & scholarships.

The Article is also gender biased as the women of Jammu & Kashmir will be disqualified if they marry a non-resident, if this is so then where Article 14, 19 & 21 of the Constitution of India gone now?

Even Article 06 of Jammu & Kashmir Constitution; subject to the modification that a female permanent resident shall cease to be so on her marriage to a person who is not a permanent resident of Jammu & Kashmir.

One more thing stresses my mind i.e.

Who gave the order of Article 35A & who has the power to amend it? This provision was enacted by a Presidential order in 1954. President orders are issued with respect to State of Jammu & Kashmir under Article 370, which is a temporary provision in the Constitution.

If we talk about Constitutional Amendments, when Article 21 was amended Article 21A was added same in the case of Article 51 but if we have a look on Article 35A there is no Article 35, there is directly Article 35A. What does this mean? Hence, the Constitutionality of this Article can be challenged on one important ground: Article 370 says that while extending Articles of the Indian Constitution modification & exceptions can be applied. It nowhere says that a whole new Article can be inserted. A 5 Judge Bench of the Supreme Court in Pranlal Lakhanpal V. The President of India, 1961 has affirmed it.

The petition by Sandeep Kulkarni, the man behind the little-known Non-Governmental Organisation “WE THE CITIZENS” had also challenged Article 35A in the Supreme Court in the year 2014.

Moreover, inserting of a new Article amounts to amendment of the Constitution which can only be done by the Parliament & not the President. Hence, the Article is Unconstitutional. The Supreme Court has been assertive about the Superior position of the Indian Constitution & President of India. In State Bank of India V. Santosh Gupta & Anr, 2016 the Supreme Court held that: It is clear that the State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India & its own Constitution is subordinate to the Constitution of India. It also held that: They (residents of Jammu & Kashmir) are governed first by the Constitution of India & also by the Constitution of Jammu & Kashmir.

Jammu & Kashmir cannot be truly integrated into India until these temporary Articles are totally removed. Why should any State get more of anything than others? One Law one Justice, full equality & freedom for all citizens of India.

Scrapping of Article 370 & thereby conversion of Jammu & Kashmir in a Union Territory is a major highlight as Central Government gets direct control over the State in many ways. Like Delhi, people of Jammu & Kashmir will elect a government which will no doubt have most of the powers like any other state government, except police. This change in my opinion will help to control the violence in the state & demilitarization will in turn help to normalize the state of affairs there. Not only this change would encourage external investment in the state, liberate the people of the region, equal rights & responsibilities would be provided to them. The state will touch new heights of development.

People of India should encourage the Government & its team for displaying the extra-ordinary political will required to take such bold steps for the nations.

“Let’s not go into the Politics of it, let’s move into the Polity of it”.

Author Details: Varnika Verma (Kumaun University, Uttarakhand.

The views of the author are personal only. (if any)

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