Article 370, a part of the Indian Constitution when it came into force on January 26, 1950, provided that only two articles — Article 1, which defines India, and Article 370 — will apply to Jammu & Kashmir. Article 370 also mandated that other provisions of the Constitution can apply to J&K, “subject to such exceptions and modifications as the President may by order specify”, with the concurrence of the state government and the endorsement of the J&K Constituent Assembly. In 1969, the Supreme Court ruled that the President can issue an Order under Article 370 only with the concurrence of the state government.
The first such Presidential Order was issued on January 26, 1950. This was replaced by another Presidential Order (the ‘mother’ order), which applied several provisions of the Indian Constitution to J&K with substantial changes, amendments and provisos. While applying to J&K the provisions of Part-III of the Indian Constitution, which relates to Fundamental Rights, the 1954 Presidential Order introduced Article 35A, which protected laws passed by the state legislature regarding Permanent Residents from any challenge on the ground that they were in violation of the Fundamental Rights.
The present challenge to Article 35A in the Supreme Court is based on the ground that it could have been introduced in the Indian Constitution only through a constitutional amendment under Article 368, and not through a Presidential Order under Article 370. This is an argument that the Supreme Court has rejected on at least three occasions earlier.
# In 1961, a five-judge Constitution Bench in Puranlal Lakhanpal vs The President of India and Others held that when, through an order under Article 370, the President applies any provision of the Indian Constitution to J&K, the term “modification” must be considered in its “widest possible amplitude”. It will not be limited to making only partial changes to the provision, but will include the power to “extend” and “enlarge” the constitutional provision, including making a “radical transformation”.
# In 1969, another five-judge Bench reaffirmed this view in Sampat Prakash vs State of Jammu & Kashmir.
# Finally, on December 16, 2016, in State Bank Of India vs Santosh Gupta And Anr. Etc., a two-judge Bench of the court followed the two earlier Constitution Bench decisions to reiterate that the Presidential Order can “extend” or “enlarge” the provisions of Indian Constitution in its application to J&K.
The constitutional validity of Article 35A is, therefore, well established. It protects legislation passed by the J&K legislature relating to benefits to Permanent Residents from challenge on the ground of violation of Fundamental Rights, while extending the chapter on Fundamental Rights of the Indian Constitution to J&K. In that sense, this provision is in the nature of a proviso to the extension of the chapter on Fundamental Rights in the Indian Constitution to J&K. In fact, the Fundamental Rights were extended to J&K through the 1954 Presidential Order.
Therefore, if the court were to accept the petitioners’ argument challenging Article 35A, the extension of the Fundamental Rights and every other provision of the Indian Constitution to J&K through consecutive Presidential Orders (all amendments to the 1954 mother order) will cease to apply. Only Article 1 and Article 370 of the Indian Constitution will then apply to J&K.
Again, in Sampat Prakash (1969), the Supreme Court held that Article 368 of the Indian Constitution, which requires approval by a two-thirds majority in Parliament to amend the Constitution, does not directly apply to J&K. The court held: “Article 368 is not primarily intended for amending the Constitution as applicable in Jammu and Kashmir, but is for the purpose of carrying the amendments made in the Constitution for rest of India into the Constitution as applied in the State of Jammu and Kashmir. Even in this process the powers of the President under Article 370 have to be exercised.” Thus, any amendment to the Indian Constitution (done under Article 368) will apply to J&K only if such amendment is extended to the state by a Presidential Order under Article 370.
If the legal challenge to Article 35A is to succeed, the Supreme Court would have to undo the constitutional law on the subject over the last six decades, as well as the application of a large number of provisions of the Indian Constitution to J&K.
This is why it appears that the challenge to Article 35A — effectively the last remnant of J&K’s special status — is primarily political and its fate, too, will be decided politically. The other way for the Centre to remove J&K’s special status will be to get the state government’s concurrence to a fresh Presidential Order to remove Article 35A. To secure such concurrence will not be easy.
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