Why debate has shifted from from Art 370 to Art 35A

Daya Sagar

This day debates over Art-370 of Constitution of India are 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 order of President of India in exercise of the powers conferred by clause (1) of Article 370 of the

Constitution of India,  so as  to add a new Article35A  in the Constitution of India. For nearly 6 decades

nobody has that particularly looked into the criticalities of the constitutional aspect of the President issuing

the said order so as to amend the Constitution of India 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..

. ( * Daya Sagar is a Sr Journalist & a social activist dayasagr45@yahoo.com 9419796096)

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