Debate over Art-370 is gradually shifting to Article 35A of the Constitution of India. The Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 is said to have been issued by the President of India in exercise of the powers conferred by clause (1) of Article 370, so as to add a new Article35A in the Constitution of India. For nearly six decades nobody has looked into the criticalities of the constitutional aspect of the President issuing the said order to amend the Constitution and may be due to such reasons it was only after 2008 that I initiated some deliberations on the Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 and in a way the birth of Art35A. The result has been that in the recent years some questions have been raised against Union of India for having unduly and unconstitutionally overstretched the jurisdiction of the President as available under Art 370 (1) of Constitution of India to the extent of not only amending the constitution but also to violate the basic principles & spirits enshrined in Constitution of India that otherwise can not be overstepped even by the Parliament of India under the provisions of Article-368 of COI ( Power of Parliament to amend the Constitution and procedure therefor - in exercise of its constituent power to amend the constitution by way of addition, variation or repeal of any provision of the constitution in accordance with the procedure laid down in the said article).
Questions have been raised on the provisions contained in Article 35A. The good and bad can be debated. Let us not for the time being venture into the debates on the contents / text of the Art35A and instead see to the constitutional technicalities of adding this ( 35A) in the constitution of India. The goods / bad and the political reasons could be referred later.
To be brief, Art-35A was added in the COI neither by the Constituent Assembly of India ( COI) nor by the Parliament of India under the constituent powers available vide Art368 but simply by an order of the President of India ( C.O 48 of 14 May 1954) issued after 4 years of adoption of COI. The Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 that is said to have been issued in exercise of the powers conferred by clause (1) of Article 370 of the Constitution, by order of the President, so as to add a new Article 35A after Article -35 , is unconstitutional to the extent it says :. 4 (j) : Part-III. After Article 35, the following new article shall be added, namely:35A. Saving of laws with respect to permanent residents and their rights.Notwithstanding anything contained in this constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,... shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.
Question here is where has the new Article 35A been added? Without any doubt a new article by the name Art35A is said to have been added in the COI simply by a Presidential order and adding a new article in the constitution of India amounts to amending the constitution.
Hence the contents of The Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 as they relate to Art35A mean amending the constitution of India through an executive order, where as Clause (1) of Article 370 nowhere confers any power or delegation or authority, not even duty to suggest to the parliament to amend the COI. Where as it is only the Parliament that ,in exercise of its constituent powers, can add any new article or delete/ repeal any article in / from constitution of India and that too only under the provisions contained in Art-368 in accordance with the procedure laid down in this article (Art-368) but that too without violating the basic spirits underlying the COI.
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