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.
With Article 370 scrapped, Article 35A too goes automatically
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.
What is Article 35A? An explainer
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".
What is Article 370: An explainer
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.