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Article 35A and the basic structure (Indian Constitution and special J&K features)
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- Can we strike down Article 35A? A recent petition filed in the SC by NGO “We the Citizens” has asked whether it can be struck down, and should it be.
- The basic promise of Indian federation: If the S.C. as much as entertains the PIL beyond dismissal, it may be as good as going back on the basic promise made to States.
- Where did it come from? Article 35A was inserted into the Constitution as part of a series of amendments made through a 1954 presidential order, imposed under Article 370. What does it do? It empowers Jammu and Kashmir (J&K) to define a class of persons as constituting “permanent residents” of the State and the government to confer on these persons special rights and privileges with respect to matters of public employment, acquisition of immovable property in the State, settlement in different parts of the State, and access to scholarships or other such aids that the State government might provide.
- No fundamental rights deemed to be violated: The Article exempts such state legislation from being annulled on the ground that they infringe one or the other of the fundamental rights. The petition challenges the immunity granted as discriminatory, and wants the Article 35A to be declared unconstitutional.
- Basic Structure of the Constitution: The law on this subject is well settled. Previous S.C. Benches have already put their imprimatur on the 1954 presidential order. In any event, the Article 35A is not amenable to a conventional basic structure challenge.
- History of federalism in our Constitution: India’s Constitution (Louise Tillin's explanation) establishes a form of asymmetric federalism, where some States enjoy greater autonomy over governance than others. This asymmetry is typified by Article 370. In its original form, Article 370 accorded to J&K a set of special privileges, and as per J&K’s Instrument of Accession, it restricted Parliament’s powers to legislate over the State to 3 core subjects: defence, foreign affairs and communications. Parliament could legislate on other areas only through an express presidential order, with concurrence of the State.
- What about Article 368? One of the provisos to the clause makes it clear that changes made to the Constitution under Article 368 will not mechanically apply to J&K. For such amendments, specific orders must be made under Article 370, after securing the J&K government’s prior assent.
- Article 370 is the tunnel: Union Home Minister of the time, Gulzari Lal Nanda, in 1964 said that "Article 370 represents a tunnel and a good deal of traffic has already passed and more will.”
- Basic arguments: Two arguments are given to annul Article 35A.
- It could not have been introduced through a process outside the ordinary amending procedure prescribed under Article 368, and
- It infringes the basic structure of the Constitution itself.
- Problems in these arguments: Article 370 is as much a part of the Constitution as Article 368. The framers knew that the Constitution accorded J&K an exceptional status. N. Gopalaswami Ayyangar, the chief drafter of Article 370, said in October 1949: “Kashmir’s conditions are… special and require special treatment.” Anthing outside the Instrument of Accession won't be made without consent of the Constituent Assembly.
- SC recognised it in 1959: That Article 370 is the embodiment of this promise was seen in Prem Nath Kaul v. State of J&K, in the S.C.. Later another Constitution Bench in Sampat Prakash v. State of J&K, clarified the position. “Art. 370 of the Constitution has never ceased to be operative and there can be no challenge on this ground to the validity of the Orders passed by the President". At the most, post 1956 when the State’s Constituent Assembly was disbanded, orders may be treated as a nullity.
- Basic Structure infringed? The rule established in 1973, in Kesavananda Bharati v. State of Kerala, that the powers of amendment under Article 368 are not plenary and that the Constitution’s basic features cannot be abrogated, was based on an interpretation of the text of Article 368. Its logic doesn’t extend reflexively to amendments made under Article 370, a provision that is essential to maintaining India’s federal structure.
- Time and tide waiting for none! More than 60 years have passed with deep material implications. So, here when constitutional amendments create vested rights in persons, as the SC held in Waman Rao v. Union of India, an amendment made prior to the decision in Kesavananda cannot be susceptible to a basic structure challenge.
- Summary : The Article 35A stands the test of historical precedence, as well as constitutional propriety, and it cannot be abrogated.
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