A Backward Push?

In the din of neutralizing J&K’s exclusivity in the Indian federation, a right-wing think tank has finally sought judicial intervention questioning Presidential powers. Syed Asma reads  the petition and says if the court upholds the petitioner’s argument, J&K may have to renegotiate its terms with Delhi, yet again

PM-and-CM

A Delhi-based NGO, We The Citizens has filed a writ petition in the Supreme Court challenging the inclusion of Article 35-A in the Constitution of India. The addition was the outcome of the Presidential Order in May 1954.

The NGO claiming to work in the interest of India’s citizens emerged in July 2013 with its president Sandeep Kulkarni as lead petitioner. Lawyers representing it include K N Bhat, Barun Kumar Sinha, Rajeev Ranjan Pathak, Anantha Narayana and Rameshwar Prasad Goyal.

The organisation has materialized what Jammu Kashmir Study Centre (JKSC) was planning for some time. Only in July, they made it public that they are approaching the apex court to challenge the new addition of Article 35 A in the constitution of India.

JKSC, a think-tank close to RSS, claims the act [article 35 A] allows J&K to grant special privileges and rights to its permanent residents but denies the same to several others who too have genuine claims.

“Article 35 A was added in the Constitution by a Presidential Order in 1954. But it is against the basic structure of Constitution, which even Parliament cannot amend,” Ashutosh Bhatnagar, JKSC Director was quoted saying last month. “So this article is unconstitutional, which was added without taking Parliament into confidence.”

And this is exactly what the 53 page PIL reiterates.

“A perusal of Article 368 (i) of the Constitution of India would show that any provision contained in the Constitution of India shall be amended or varied or repealed only by the parliament alone. By this provision, act of amendment, variation or repeal is excluded by any other contained in the constitution including Article 370 of the Constitution of India,” the petition reads. “Therefore, by bringing new article in the Constitution by the President under Article 370 of the Constitution in respect of J&K is beyond the jurisdiction and power of the President of India.  For that matter, parliament alone is competent and empowered to amend the constitution.  Therefore, the exercise of power by the President of India to amend the constitution by incorporating new Article i.e. Article 35 A is unconstitutional.”

Going by this logic, the PIL and its petitioners and ideologues are invalidating the rest of the laws [of the constitution of India] which were extended to J&K through other Presidential Orders and are in vogue.

Reason – all the laws, apart from Article 1 and Article 370, in practice in the state were issued by the Presidential order in 1954. The laws were made applicable to the state through ‘Constitution (Application to Jammu & Kashmir) Order 1954’.

The article 35 A is not applicable to any other state of India but J&K and was added to the constitution of India after the accession between Maharaja of Jammu Kashmir and Indian dominion. Pertinently, J&K is the only Indian state where the Indian constitution is applicable with modifications and where the President of the country has intervened.

So, the right wingers by moving this petition would want to take J&K back into 1947 where the state was bound to abide by only two articles, including Article 1 and Article 370, which is precisely what the constitutional experts in Kashmir think.

Article 1 specifies the name of the country as Bharat and introduces it as the union of territories mentioning a list of places including J&K. Article 370 grants special autonomous status and mentions the power of parliament to make laws for the state shall be limited.

“The provisions of Article 1 and of this article (Art 370) shall apply in relation to that State and such of the other provisions of this Constitution shall apply in relation to that state subject to such exceptions and modifications as the President may by order specify,” mentions Article 370.

The writ, however, puts forward its own reasons and explanations for seeking the undoing just part of the presidential order.

The petition dubs Article 35-A discriminatory in nature, insisting, it violates the fundamental rights of an Indian citizen, thus questioning Presidential power and jurisdiction further.

The petition has linked its debate with the Maharaja era when all the powers – legislative, executive and judicial were with him. When Indian dominion was granted independence and the Government of India Act 1935 was passed, the petition says all the powers of all the majesties [including the British rulers] and other rulers was passed on to the government of India. It mentions section 5 providing for establishment of federation and accession of Indian States.

“Government of India Act, 1935 which includes the name of states in the union of states wherein Kashmir has been included at serial No 3 under the heading the council of states and the federal assembly representatives of the Indian states,” the petition reads.

But the petitioner and the group lawyers who filed the petition fail to understand that act they have quoted was passed in 1935 but the President’s intervention happened in mid-1954.

The petition states that the special treatment to J&K in the garb of Article 35-A ceased after this 26th amendment. The 1971 amendment included a new sub-Article in article 366 which defined the word “ruler”.

“Ruler means the Prince, Chief or other person who, at any time before the commencement of the Constitution (Twenty sixth Amendment) Act, 1971, was recognised by the President as the Ruler of an Indian State or any person who, at any time before such commencement, was recognised by the President as the successor of such Ruler,” the petition reads.

The petitioners believe that the effect of this definition is that the ruler who ever entered into a merger agreement ceased to be a ruler for all purposes. They by this definition want to make the Instrument of Accession “inoperative”.

To strengthen their argument the petition include two referral case details, one of Puranlal Lakhanpal vs. The President Of India And Others, 1962 SCR (1) 688 and other of Sampat Prakash v. State of Jammu & Kashmir & Anr. 1970 SCR 2 365.

In the first, the petitioner had challenged the amendment made in Article 81 by the Presidential order namely Constitution (Application to Jammu & Kashmir) order 1954 (Para 5 (c)) by exercising power under Article 370 (1) of the Constitution of India. Rejecting the petition, the court observed the President does not have power to bring “radical transformation” but he certainly can make modifications which he did while amending article 81.

The second also met the same fate and there was no discussion about the power of President under Article 370. The reason put forward in both the judgements was the “the abnormal political condition in the State of J&K,” the petition adds.

Quoting other judgement of Ajmer-Merwara (Extension of Laws) Act 1947 in the case of Delhi Laws Act, 1912, the petition mentions that court maintained that radical transformations cannot be done in the name of modifications. Analysing all the three judgements, the petitioner infers that “Article 370 empowering the President to amend the Constitution is ultra virus.”

The larger argument suggests Kashmir was never separate and was an integral part of India, even before 1947.  “The state of J&K a temporary provision was made namely Article 370 to bring normalcy in the State of Jammu & Kashmir and to strengthen the democracy in the state,” it states.

Pertinently, it is not the first time that this issue has been raised in the Supreme Court. Earlier apart from Puranlal Lakhanpal and Sampat Prakash, Prem Nath Kaul had also challenged President’s role and powers of amending the constitution. The court decisions, however, confined to the discussions on extent of modifications the President can do under Article 370.

The only addition in BJP ruled India is the discovery of Article 35 A. The case is slated for a hearing on August 17. Wait and watch!

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Syed Asma completed her masters in journalism from the Islamic University, Awantipore, in 2010. After working with Greater Kashmir and Kashmir Times, she joined Kashmir Life in February 2011. She covered politics, society, gender issues and the environment. In 2016, she left journalism to pursue her M Phil from the University of Kashmir. She is presently pursuing PhD.

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