By V C Shukla
V C Shukla is an Advocate at the Hon’ble Supreme Court of India.
The recent debate over the validity of Article 35A of the Constitution is nothing less than a break from the past. Article 35A is not placed in the text of the Constitution; instead, it forms part of the same by way of an Appendix. Before analyzing the genus of Article 35A in the Constitution the question arises, Where is the power to add a provision in the Constitution? The only provision which acknowledges the amendment in the Constitution is Article 368. However, Article 35A was not brought by an amendment under Article 368it was added to the Constitution by way of a Presidential Order passed under Article 370 of the Constitution.
The origin of Article 35A
Upon perusal of the Constituent Assembly debates on the issue, it is easy to observe that the objective of the Constituent Assembly was never to grant powers to the Legislature of Jammu and Kashmir (J&K). In fact, the objective of Article 370 was to provide an opportunity to the State of J&K to become capable of being governed by the Constitution of India, like the other states.
Article 35A was added by the President by way of the Constitution (Application to Jammu & Kashmir) Order 1954, which provides that the State of J&K will have powers to grant special rights to the permanent residents of the State as defined by the State and the same cannot be challenged as violative of Part III (Chapter on Fundamental Rights) of the Constitution. Thus, the Presidential Order not only adds a provision in the Constitution but also grants protection to Article 35A in the form of Schedule IX.
The impact of Article 35A
The aftermath of Article 35A is such that the State of J&K has formed laws which are gender discriminatory in nature. In the current sequence of events where the Supreme Court has declared the triple talaq as unconstitutional, granting the Muslim women victory against the age-old gender bias, it will undeniably be an interesting issue when the definition of permanent residents in the State of J&K is hit by gender discrimination. The special rights granted to a permanent resident are, employment under the State Government, acquisition of immovable property, settlement in the State and right to scholarship and such other forms of aid as the State Government may provide. So, if a woman from Kashmir marries a man who is not from J&K or not a permanent resident of J&K, she will be deprived of all the special rights under Article 35A. In the recent petition filed by Charu Wali Khanna before the Supreme Court, she rightly argues, that she can work or own a house/property in any part of the world except in the State where her roots lie.
The word with such exceptions and modifications used in clause 1 of Article 370 cannot be given a wide interpretation in order to make it capable of adding a provision in the Constitution. The scope and extent of the judicial review on the executive power have already been decided by the apex court of this country in several landmark judgments. It is pertinent to note that the constitutional validity of the 1954 Order has already been tested by the Constitution Bench of the Supreme Court not once, but twice.
Judicial precedent involving Article 370
Initially, in Puranlal Lakhanpal v. President of India & Ors., the question was whether the President can change the method of electing the members of the House of People from the State of Jammu & Kashmir by way of an indirect election instead of direct election. The Court answered in the affirmative and held that the change in the method of election is only a modification.
The second challenge to the Presidential Order of 1954 was in Sampat Prakash v. State of Jammu & Kashmir and Anr., where the issues raised were of greater constitutional importance such as the temporary applicability of Article 370; that the President in the guise of modification cannot add a provision in the Constitution; and once Article 368 is made applicable to the State of J&K, the power of President to amend the Constitution under Article 370 does not exist. Although, these arguments were not accepted by the Constitution Bench headed by then-Chief Justice Hidayatullah. However, it is apt to revisit this issue because in our country, in what has become an age-old tradition, many political problems have been solved by the judiciary and triple talaq is a recent example which is a big step towards our dream of a Uniform Civil Code in the independent India.
The way ahead
Fundamental rights in our country have been bolstered by the interpretations of the Supreme Court. The opinion of Justice Fazl Ali is that fundamental rights are not isolated islands, and this has become established law subsequently. The unanimous decision describing the right to privacy as a fundamental right shows the advancement that India has made in becoming a nation committed to human rights.
Nevertheless, the Supreme Court will also have to face the challenges before it. If the Court holds that Article 370 does not grant powers to the President to amend the Constitution, it would consequently make a large portion of the 1954 Order unconstitutionalthis would be a notable change in position of law existing from the last 60 years. The Court might have to resort to prospective overruling devised by Justice Subba Rao in Golaknaths case. Another issue of paramount importance would be; the view taken by Justice Nariman in the triple talaq case overruling State of Andhra Pradesh v. McDowell & Co., which held that arbitrariness alone cannot be a ground to hold a law unconstitutional. Article 35A is an excellent example of the law which is prima facie arbitrary. If the view of Justice Nariman is held to be good, then Article 35A can be consequentially held unconstitutional.
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