Article 35A Removal Can Reopen Accession Debate

If  the constitutional provision is struck down, the status of Kashmir could go back to  pre-1953 position

Article 35/A has its genesis in the Instrument of Accession, subsequent deliberations between Srinagar and New Delhi and the subsequent Constitution (Application to Jammu and Kashmir) Order 1954 issued by the then President Rajindra Prasad (on the advice of Nehru cabinet) under Article 370 and adopted by the state at a time when the Jammu and Kashmir Constituent Assembly was deliberating the framing of  the Jammu and  Kashmir Constitution. 

It is an altogether different matter that women had no right to vote for electing the said assembly and about 72 of its members were elected “unopposed” and that by the time the article was adopted by the state the “popular” leader Sheikh Abdullah had been dismissed and incarcerated. Without going into further details the Order of 1954 extended various provisions of the Indian Constitution to the state with such modification and exceptions including Article 35 A as an exception to the powers of parliament of India to among others to legislate on matters of residence in employment within any state or a local or other authority. 

Currently the validity of Article 35A has been challenged essentially on the ground that this “amendment” to Article 35A has been made by a Presidential Order when any amendment to the Indian constitution could be made only by Parliament through a certain majority etc. and not by the President. 

The fact is the powers have been conferred on the President by Article 370 duly drafted and adopted by the Indian Constituent Assembly. The said order is replete with similar exceptions with respect to other articles of the Indian constitution in their application to Jammu and Kashmir saying such and such clause of the particular article shall be “omitted”, “substituted” or such and such clause shall be “added”. 

For example;

“In article 35- in clause (a) (i), the words, brackets and figures “clause (3) of article 16, clause (3) of article 32” shall be omitted;  and (iii) after clause (b), the following clause shall be added, namely:- “(c)  no  law  with  respect  to  preventive  detention  made  by  the Legislature of the State of Jammu and Kashmir, whether before or after the  commencement  of  the  Constitution  (Application  to  Jammu  and Kashmir)  Order,  1954,  shall  be  void on  the  ground  that  it  is inconsistent with any of the provisions of this part, but any such law shall,  to  the extent of such inconsistency, cease to have effect….. (j)  After  article  35,  the following “article” shall be added; 

Such omissions, substitutions, additions are not unique to the extension of Article 35 but so many others in relation to Jammu and Kashmir. 
The confusion seems to be  created as with respect to addition of 35 A it refers to addition of an “article” instead of a “clause” with respect to extension of other articles.

How is 35 A different from the other clauses added, substituted or omitted to various articles of the Indian constitution in their application to Jammu and Kashmir vide the same Presidential Order 1954? Is  that “omission”, “addition”, “substitution” not an amendment of the Indian Constitution. 

Article 35 A along with the Order of 1954 is basically part of the Jammu and Kashmir Constitution and form its basic structure that can neither be amended nor challenged before any Court.

We had a recent judgement of the Jammu and Kashmir High Court wherein it was declared that there was a basic structure of the Jammu and Kashmir Constitution with regard to nomenclature of the Sadre Riyaasat that could not be changed but as expected the court left it to the wisdom of legislature to rectify the same. 

Now if by any chance Article 35 A is struck down the whole order of 1954 will be amenable to challenge and if declared null and void, that, of course neither can be nor will be done the status of Kashmir will be back to the pre 1953 position. Will it be done ever?

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