Article 35A and the basic structure

Article 35A and the basic structure

Article

1. SuhrithParthasarathy an advocate, has talked about connection between Article 35A and basic feature of Indian Constitution.

 Article 35A: Was added was added into the constitution through presidential order of 1954. Empowers the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges in respect to public employment, acquisition of immovable property in the State, settlement in different parts of the State, and access to scholarships.

Important Analysis:

2. According to author, struck down the article will damage the spirit of Indian Federalism.

3. High court bench to check the validity of Article 35A if it infringes on the Basic structure of Indian constitution.

4. HC believes present petition is meritless as the previous bench has already approved 1954 presidential order.

5. According to political scientist Louis Tillin, Article 370 has established Indian constitution is form of “asymmetric federalism”

6. Author’s Argument in favor of article 35A

• Instrument of Accession gave India the power to make laws only on Defence, External Affairs, and Communications.
• Other area could be legislated only through the president order with prior assent of state government.
• Though, Article 368 deals with the ordinary power of Parliament applicable to other parts of India, article 35A makes it clear that the changes made under article 368 will not apply to J&K.
• Any amendment require to be applicable for J&K needs to bring under Article 370 and needed prior state government assent.
• President order to make any provision can be accepted only on the prior recommendation of state constituent assembly.
• Article 370 is described as a tunnel because it seems to be the only way to take the Indian constitution in J&K.

7. Petitioner claims against Article 35A

• Article 35A could not have been added outside the scope of Article 368.
• It infringes the basic structure of constitution.

8. Argument against the claims:

• Article 370 is also an integrated part of Indian constitution as Article 368.
• Kashmir require special focus and attention.
• Constituent assembly of state consent require for adding any scope in Instrument of Accession.

9. Constitutional validity of Article 370 further recognized by SC in PremNath and SampatNath Prakash case.

10. Constituent assembly was disbanded in 1956. Any presidential order made after 1956 without state approval will be considered null and void.

11. He has also pointed, any change in article 35A is not always against the basic structure of constitution.

12. Because, SC verdict in Keshwananda case doesn’t cover all the aspects of article 368 and logic doesn’t extend toArticle 370.

13. However the Supreme Court held in Waman Rao v. Union of India has cleared, amendment made prior to Keshwananda is not capable of challenging basic structure otherwise may cause more harm than expected.