Why Article 35A Must Be Protected

A three-judge bench of the Supreme Court (SC) comprising Chief Justice of India Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud is seized of batch of petitions challenging the constitutional validity of Article 35A that empowers the Jammu & Kashmir (J&K) legislative assembly to define the permanent resident of J&K and confer rights and privileges upon them while excluding any person from all other States from such benefits.

This article came into existence in 1954 by means of a Presidential Order passed by the then President, Dr. Rajendra Prasad, on the aid and advice of the Union Cabinet, “The Constitution (Application to Jammu and Kashmir) Order, 1954”. This was done by the President by virtue of power conferred under Article 370 of the Constitution.

It is also important to take into account the legislative history of how this article came into force. In fact, the significance of legislative history was underlined by a Constitution bench of the SC in the recent case of power demarcation between Delhi government and L-G where the Court went into legislative history of Delhi as a union territory to declare that Delhi unlike other union territories is sui generis, i.e. a different class in itself.

Article 35A is a result of the Delhi Agreement, 1952 between India and Kashmir represented by Prime Minister Nehru and Sheikh Abdullah respectively. It was agreed that constitutional status of J&K as a unit of Indian federation would involve granting special concessions to it, one such special concession that was agreed upon was certain immunity to the permanent residents of J&K. This meant that these permanent residents of J&K would be considered as citizens of India and have special rights at the same time which would be determined by the state legislature by means of law.

It has been contended by the petitioners that the said order was not made a law by the Parliament and amounts to amendment to the Constitution by the President which he has no power to do so. In Puranlal Lakhanpal v. President of India, a five-judge constitution bench of the SC had ruled that power of the President under Art. 370 to efface certain provisions of the Constitution in application to J&K also includes power to amend a particular provision in application the state of J&K. This means that if the President by means of Presidential order exercises his right to ‘modification’ under Article 370(1) which includes an amendment, it is valid and as per the law of the land laid down by the SC in Puranlal Lakhanpal case. Article 35A is nothing but giving effect to the legislative history of the constitutional status of J&K which must be held valid.

Further, it has been alleged that article 35A violates right to equality as enshrined in article 14. However, it must be noted that article 14 permits reasonable classification provided that it is based upon ‘intelligible differentia’ and such ‘intelligible differentia’ must have a rational nexus with the object sought to be achieved. In the given case, object sought to be achieved is special protection to the permanent citizens of the J&K and such classification special citizenship is permissible within the constitutional scheme.

“Federation is a system which consists of two sets of governments which are independent, co-ordinate and distinct.”  K. C. Wheare

Federalism is a device by which plural qualities of a society are articulated and protected. It is devised to secure both regional autonomy and national unity. It is a product of historical forces in plural societies. If the forces of national unity are very strong in such society, the central government shall have more powers. The strength of these regional and national forces changes from time to time in view of changing social, economic and political conditions and compulsions. Thus, federalism has been reflecting these changing historical conditions and compulsions. Federation is the existence of dual polity.

Federalism is a principle of government which defines the relationship between Central Government at the national level and its constituent units at the regional, state or local levels. The principle of government allocates power and authority between the national and local governmental units in a way that each unit is delegated a sphere of power and authority, that only it can exercise, whereas the others have to be shared. A well designed, and more important, well-functioning system of federal governance, by virtue of its manifold benefits, plays a key role in promoting the stability and prosperity of nations as the heights attained in development by the leading federations of the world – USA, Canada, Australia and Switzerland – demonstrate.

The framers of the Indian Constitution wanted to build a strong united India. India has adopted federalism to actualize and uphold the values of national unity, cultural diversity, democracy, regional autonomy and rapid socio-economic transformation through collective efforts. Article 35A in this sense is way to cherish and uphold the constitutional values and principles envisioned by the framers of our constitution.




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