A fraud on the Constitution: How Article 35A was added by deceit

New Delhi, Aug 06: India took a historic step on Monday, when it scrapped Article 370 and also declared Jammu and Kashmir and Ladakh as two Union Territories.

Along with the Article that gave special status to Jammu and Kashmir, Article 35A too stood abrogated. Many have argued about the manner in which Article 35A was incorporated into the Indian Constitution in 1954. Some even say that it was incorporated through deceit.

Article 35-A was incorporated in the Constitution of India in 1954 by an order of the then President of India Dr. Rajinder Prasad on the advice of the Jawahar Lal Nehru Cabinet.

The controversial Constitutional (Application to Jammu and Kashmir) Order, 1954 followed the 1952 Delhi Agreement entered into between Nehru, the first Prime Minister of India and the then Prime Minister of Jammu & Kashmir Sheikh Mohammad Abdullah, which extended citizenship to the "State Subjects" of Jammu & Kashmir.

So Article 35-A was added to the Constitution of India as a testimony of the special consideration to the Indian Government accorded to the "permanent residents" of Jammu and Kashmir.

The Parliamentary route of law making was bypassed when the President of India incorporated Article 35-A into the Constitution of India. Article 35-A is a rarest example of invisible State meddling with the Constitution of India where it has no constitutional mandate.

Article 35A was neither a part of the draft Constitution nor a part of the adopted and enacted Constitution of India. This Article was added to the fundamental rights of the Constitution by a Presidential Order, viz., Constitutional (Application to Jammu and Kashmir) Order 1954 which extended the application of various provisions of the Constitution of India to Jammu and Kashmir with such modifications, exceptions and alterations with the concurrence of the Government of the State. Article 368 of Constitution of India was also extended in its application to the State but with a proviso to the effect that "no such amendment shall have effect in relation to the State of Jammu & Kashmir unless applied by order of the President under clause (1) of Article 370 of "Constitution of India".

Be that as it may, from the reading of this provision it cannot be construed that the President of India is empowered to exercise the constituent power of the Parliament under Article 368 of Constitution of India to add any provision in the fundamental rights part in its relation to the State of Jammu Kashmir.

The CO 1954, which superseded Constitution (Application to Jammu and Kashmir) Order 1950 of 26 January 1950, was issued under the permissible limits of Article 370 of Constitution of India - a temporary constitutional provision relating to the State of Jammu Kashmir. Article 370 of Constitution of India authorised the President of India to extend the provisions of the Constitution of India in its relation to the State of Jammu &
The addition or deletion or modification to any part of the Constitution of India amounts to an amendment to the Constitution of India. The power to so amend rests in Parliament as per procedures laid out in Article 368 to the Constitution of India.

It is a fact that Article 35-A was never presented before the Parliament which ipso facto means that the then President bypassed the amending procedure as laid out in the Constitution and usurped the functions of Parliament.

This also means that the amending power of Parliament under Article 368 of the
Constitution of India was abridged in its application to Jammu & Kashmir. Article 35A was included "surreptitiously" in the Constitution of India than by following the ordinary procedure of amendment under Article 368 of the Constitution of India, and is, therefore, "constitutionally vulnerable".

The President of India, by an Executive Order, added the Article 35A in the Constitution though Article 370 of Constitution of India does not confer Legislative powers to the President to amend the Constitution of India.

Article 35-A not only violated constitutional procedures established by law but also the fundamental right guaranteed under Articles 14, 15, 16, 19, 21 of the Constitution of India. Article 35-A is a big 'fraud" not only with the Constitution of India but with the Parliament of India too.