‘Article 35A is not part of the Constitution of India’: 

‘Article 35A is not part of the Constitution of India’: 

Context:

• Article 35A, is being contested in the Supreme Court through a number of petitions that it “is not part of the Indian Constitution”.

What is the argument?

• There is an argument projected that the President has no powers to amend the Constitution.
• But the fact of the matter is that Article 35A is not part of the Constitution of India.
• It’s a part of the Constitution only applicable to J&K which has a difference.
• So there is no requirement of Parliament amending it.
• Moreover, Parliament as such had no powers to add any article of the J&K Constitution except to Article 370. “Every Article has been made applicable to J&K through Article 370.
• In Article 370, the President has been given powers to amend, alter or modify any article viz-a-viz J&K, with exceptions and modifications”

What is Article 35A?

• Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a unrestricted authority to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare.
• The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

How did it come about?

• Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.
• The Presidential Order was issued under Article 370 (1) (d) of the Constitution.
• This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.
• So Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.

Role and Function of President of India:

Executive Functions:

• Head of the Union: The President is the head of the Union Executive.
• The executive power of the Union to be exercised by the President is extended to the matters with respect to which Parliament has power to make laws and to conclude treaty and agreement.
• Appointments: As head of the executive, the President appoints the Governors of States, the Judges of the Supreme Court and the High Courts, the Auditor General of India and many other high officials, such as the members of Finance Commission, Election commission, Union Public commission etc.
• Appointment of the Prime Minister and other Ministers: The President also appoints the Prime Minister and with his advice the other Ministers of the Union Council of Ministers.
• Can ask to prove Majority in Lok Sabha: Union Council of Ministers normally remains in office for five years, unless dissolved earlier for any reason.
• The President must be satisfied that the Council of Ministers enjoys the confidence of the majority of the Lok Sabha.
• Supreme Commander: As head of State, the President is the supreme Commander of the Armed Forces of India and is entitled to declare war or conclude a treaty.

Power to Promulgate Ordinances

• Except when both Houses of Parliament are in session, the President may promulgate such Ordinances as the circumstances appear to him to require (Article 123).
• Such an ordinance can have the same force and effect of an Act of Parliament.

Legislative Powers and Functions

• President is a part of Parliament: The Union Legislature or Parliament consists of the President and two Houses of Parliament.
• The President is, therefore, an integral part of Union Legislature.
• Summons and Addresses Parliament: The President may address either or both House of Parliament.
• Nomination: The President nominates a number of members in both Houses.
• The chief purpose of the nomination is to ensure adequate representation in Parliament of all sections of population which many not always be achieved through elections.
• Bill passed by a State Legislature: A bill passed by a State Legislature may also be reserved for the consideration of the President by the Governor of that State.

Financial Powers and Functions

• The President causes the annual budget of the Union Government to be laid before Parliament every year.
• No proposal for spending money or raising revenues for purposes of government can be introduced in Parliament without previous permission of the President.