By Daya Sagar
Even within the scope of sub- clause (d) of clause (1) of Article 370 { Art370 (1) (d) says … ..such of the other provisions of the Constitution shall apply in relation to J&K State subject to such exceptions and modifications as the President may by order specify but… } an order for adding a ‘new article’ in the constitution can’t be defended or taken refuge under such a provision (Art 370 1-d ) since sub- clause 1d of Art 370 allows only modification of some existing constitutional provision and cannot be used for amending the Constitution of India to the extent of even adding a new article. An act of adding a new article by Presidential order, like it has been done in case of Art 35A, surely does not fall in the class of modifying an existing provision as far as my fair understanding is concerned.
In the Puranlal Lakhanpal Vs. the President of India and others case the apex court (Justice Gajendragadkar, P.B. Sarkar, A.K. Wanchoo, K.N. Gupta, K.C. Das, Ayyangar, N. Rajagopala writ petition No. 139 of 1957 under Art. 32 of the Constitution of India for enforcement of Fundamental rights. Date of Judgment: 30/03/1961 ) held, that the word “modification” used in Art 370(I) must be given the widest meaning in the context of the Constitution and in that sense it includes an amendment and it cannot be limited to such modifications as do not make any “radical transformation”.
Similarly in the Writ Petition No. 11 of 1968 under Art. 32 of the Constitution of India for the enforcement of the fundamental rights, Sampat Prakash vs State Of Jammu & Kashmir & Anr Bench Bhargava, Vishishtha Hidayatullah, M. (CJ) Shelat, J M Mitter, G K. Vaidyialingam in judgement delivered on 10 October, 1968 too the SC had observed to go with the judgement delivered by a larger bench in the case Puranlal Lakhanpal vs The President of India,1962. Whereas, with due respects to the opinions of Apex court, in the case of Art 35A the question is not of modification or even amendment of an existing constitutional provision but it is a case of adding altogether a new article by amending the constitution . It is not a case where the President has ordered some exceptions and modifications of some provisions of constitution of India ( that exist in the first constitution of India or have been incorporated in the COI using constituent power contained in Article 368 by Parliament of India at some later date ) for direct application with regard to Indian state of Jammu and Kashmir.
PART – IV
The apex court constitutional bench has observed in the case of Puran Lal Lakshanpal, “thus, in law, the word “modify” may just mean “vary”, i.e., amend, and when Art. 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify, it means that he may vary (i.e., amend) the provisions of the Constitution in its application to the State of Jammu & Kashmir. We are, therefore, ‘of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word “modification” used in Art. 370(1) and in that sense it includes an amendment”. There is no reason to limit the word “modifications” as used in Art. 370(1) only to such modifications as don’t make any “radical transformation”.
Again with due regards to opinion of the Apex court the subject matter still needs a close review more as regards the ‘genuineness of existence of Art-35A that it could be the contents of its text.It is true that Art 370 (1-d) says that President may apply the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify but it can be taken as making reference only to the provisions that exist in the constitution and can not be stretched to modifying the constitution itself i.e adding some new article in the Constitution of India as has been done by adding a new article 35A in constitution of India by issuing the constitution application ( to Jammu and Kashmir ) order of 1954 C.O. 48 containing Section-4(j) regarding Art 35A So, the very existence of Art 35A and its birth is put under a question mark being illegitimate.
The constitution application ( to Jammu and Kashmir ) order of 1954 C.O. 48 had been so far put under question mark for it’s being unconstitutional and void on the ground that it damaged the basic structure of the Constitution by incorporating some unfair provisions in the shape of Art35A but much above that it goes beyond to even amending the COI unconstitutionally.
Supreme Court has so far held the laws and provisions made in J&K that discriminate between citizens of India who are Permanent Residents of J&K and those who are not valid for survival under the cover of ‘Art35A’ of Constitution of India even if it violates the fundamental rights of some as granted in part-III of COI . But the debate that was actively initiated by persons like the writer in 2009 is a question on the constitutional legitimacy of even the birth of Art35A and there exist all reasons for taking up this issue before the Apex Court for consideration by a larger Constitutional bench pleading that Clause (1) of Art 370 of Constitution of India confers no power of President of India to amend the Constitution of India simply with the concurrence of the Government of the State of Jammu and Kashmir so as to add a new article in the Constitution of India by the name Article35A after Article 35 of COI since such act is an amendment of the COI and only Parliament of India can do using the constituent power vested in Art 368 of Constitution of India. Hence before discussing good and bad of the text of Art-35A, the first need is to examine whether this Article even constitutionally exits?
Apex Court has on 17th July 2017 already referred references in Writ Petitions (Civil) 722/2014 to a larger 3 Judge Bench on validity of Article 35A. Hope the constitutional technicalities will surely attract the attention of the apex court worth referring to a larger constitutional bench the text of C.O. 48 where it says :- “After Article 35, the following new article shall be added, namely:-35A.”. And surely the new article 35A has been added in the Constitution of India. Adding a new Article in Constitution of India is amending the constitution of India and not just applying some provisions of the Constitution of India in relation to J&K State with some exceptions and modifications as the President may by order specify.
To be concluded
(Daya Sagar is a Sr. Journalist & a social activist can be reached at dayasagr45@yahoo.com)