A Look Through the mist

Anomalies created by amending Article -35 of  Constitution  by  a Presidential order are against the spirit of COI

By

Daya Sagar

In the recent times whenever I had to refer to THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1950 C.O.10 Dated the 26th January, 1950  & THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 C.O 48 of 14 May 1954  ( Presidential order) I have been feeling t  that  there is utmost need to constitutionally /logically  investigate into. There appear to have been committed some grave irregularities to the extent of  misuse / wrong use  of the provisions in  Article -370 of the Constitution of India.

To be brief may be the provisions that were for making simple exceptions and modifications had been used for amending different Articles of Constitution of India, like adding Article -35A  after Article-35 in the Constitution. Some other articles too have been made victim. 

In simple words, when ever a Clause  is added to an Article or is substituted for a clause of an Article ; or when ever an Article is added to the Constitution ; or a proviso is added to a Clause of an Article or to an Article, it is amendment of  Constitution/ Article of Constitution and President of India cannot  on his own issue any order in exercise of the powers conferred by Clause (1) of article 370 of the Constitution  merely on receipt of  concurrence of the Government of the State of Jammu and Kashmir;  President has to only declare such cases  after consultation with/ concurrence of State Government where a law is to be made / Constitution of India can be operated / is to  be operated / constitution is to be amended by the Parliament  as per provisions laid in Art-370 Clause (1) Sub-Clause (b-i) & (b-ii). 

A number of references contained in C.O 48 THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 C.O 48 of 14 May 1954 do fall  in the class of amendment to COI  and that could be done only by the Parliament of India after reference / declaration  is made by President under Clause (1) Sub clause (b-i) & (b-ii).  Where as the expressions like “add” / “substitute” in Article  or In Clause … of Article…..   have been used in the said order.  Article -35  & 35A ; Article -368, Article-7, Article-19, could be quoted for examination. In a way it appears  to me that Article-16 ( rights to employment in government , Article-19 ( right to property/ trade ) have been violated  by the manner in which Article 35 A has been added in the Constitution of India by a simple Presidential order encroaching upon the powers of Parliament.

It could be inferred that the amendments have been ordered vide said order under the cover of  Sub-Clause(d) of the Clause-1 of Constitution of India that does not empower the President to perform  the functions of Parliament but only empowers the President to  order which laws passed by Parliament can be applicable to J&K also in toto or with some deletions / modifications . Modification here surely does not mean that President can amend an Article of Constitution of India without absolutely making no reference to Parliament.

It is often said that J&K Laws are violating the fundamental rights of Indian Citizens since J&K has a Separate Constitution. But if atall it is so, it is not so due  a ‘separate Constitution’ but is due the fact that J&K State had been allowed by GOI to violate some fundamental rights of  Citizens of India and provisions as contained in Articles like Article-16 (  Art- 16.1 There shall be equality of opportunity for all citizens relating to employment  or appointment to any office under the State…...16.2  No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State…..    ) and Art-19 ( 19.1 All citizens shall have the right(a) to freedom of speech and expression ……………….; (e) to reside and settle in any part of the territory of India ;(f) to acquire, hold and dispose of property ; ………)  while further defining the existing relationship of the State with the Union of India as an integral part thereof . And the Constituent Assembly incorporated in J&K Constitution the Sections like Section-51 ( Candidature for J&K Legislature) , Section- 127 ( employment in J&K government institutions and Section-140 ( voter eligibility for Assembly Elections) read with Section-6 of J&K Constitution. This has been done under the Cover of ‘Article-35A’ of Constitution of India. In a way the power of Parliament to make laws /Acts under Articles like Article -16 , Article-19  to make special provisions for classes saving the fundamental rights was delegated to J&K Constituent Assembly / J&K Legislature under Art- 35 A of COI.  Property rights to Indian Citizens  who do not hold PRC  of J&K  have  been denied  in a very concealed manner by referring to existing laws  coming from the Maharaja Government.

The anomalies created by  amending Article -35 of Indian Constitution  by  a Presidential order are against the spirit of COI .  Adding after Article 35, the new Article -35 A in Constitution of India is amending the Constitution of India  by a Presidential order  simply with the concurrence of State Government. This  could be seen as unconstitutional since Constitution of India can not be amended  by a Presidential order under Article -370 but can be amended only under  the provisions and procedure as laid down in Article 368 of COI. It has remained unquestioned for over 6 decades.  Although enough damage has been done to the Interests of India Nation as well as citizens of India but still the corrections could be got constitutionally applied. Even Article-368 of Constitution of India has been unconstitutionally amended  in the said Presidential Order.

So strangely the amendments made to Constitution have been concealed from ‘general audit’ by not mentioning the same in the text of editions of main constitution and the amendments have been mentioned in the Appendix-1 {Constitution ( (application to Jammu and Kashmir ) Order 1954} and the Appendix-II (  Re-statement, with reference to the present text of the Constitution, of the exceptions and modifications subject to which the Constitution applies to the State of Jammu and Kashmir  ) .The result has been that there may be some people even in the legal profession as well who  have not that seriously taken notice of these facts / such amendments all these years.

But since addition of Art 35A in the  COI and adding a Proviso to Art 368 are of serious implications, the same have been particularly discussed by me with in the capacity of  my humble wisdom.

May be with more  expert /legal  review of the contents  of the orders like Constitution ( Application to Jammu and Kashmir) Order 1954  a case could be made  for approaching the Hon’ble SC of  India praying for applying corrections. It could be prayed for review before the Hon’ble Apex Court  that (i) how could Article 368 of Constitution of India could be so handicapped as regards “application” to J&K Affairs. And in case even an amendment  (  s.55 of Constitution Forty Second Amendment Act 1976…. , after clause (3), the following clauses shall be inserted, namely:- "(4) No amendment ……) by Parliament of India   by way of Clause -4   and Clause-5  to Art 368 is against the basic spirit of COI (These section have  been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others (1980) 2 S.C.C. 591.) , then why is not Art 35A of Constitution of India  ( even some more amendments) against the basic structure of Constitution of India since amendment of Constitution adding Article-35A  has not been under Article -368 but by a simple Presidential Order. (Daya Sagar is a social activist and Senior Coloumnist J&K affairs dayasagr45@yahoo.com 09419796096)