Insertion of Article 35A is controversial because it was never passed by the Parliament of India and it violates the fundamental rights of the citizens of India. Also, unconstitutional mechanisms were used to insert this provision in the constitution and it has far-reaching adverse effects on the citizenry of the country. This provision played havoc in the life of many people, who have remained secondary citizens in Jammu and Kashmir though the constitution of India does not discriminate among the citizens of the country. Importantly, one needs to understand two other important provisions of the constitution of India viz. Article 368 and Article 370 that are often discussed in the context of Article 35A. Article 368 gives power only to the Parliament of India to make any amendment in the Constitution of the country whereas Article 370 is often misquoted, in the context of Article 35A.

 

 

Article 370 is the temporary provision with respect to the State of Jammu and Kashmir. In the context of Article 35A, it is often incorrectly quoted that Article 370 (i)(d) gives powers to the President to implement the provisions of Constitution of India in the state of Jammu and Kashmir and President of India used the same powers while implementing Article 35A in Jammu and Kashmir. Article 370 (i)(d) mentions that “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”. Essentially this provision gives power to the President to implement the provision of Constitution of India in the State but it does not permit President of India to add any new provision in the Constitution of India. In case of Article 35A, a new provision was added and that too without even presenting, discussing and approving it by the Parliament of India. It is important to note that the President neither modified nor made any exception but added a new provision i.e. Article 35A in the Constitution though he does not have such wide powers. This power of addition and deletion of any provision in the Constitution of India is the sole domain of the Parliament.

 

 

Article 368 gives power of amend of the Constitution exclusively to the Parliament of India. According to this provision there are three processes through which any amendment in the constitution can take place viz.

 

a. Simple majority: In this process, a simple majority is required for making amendment in provision of the Constitution.

 

b. Special majority: Under this process, a bill is moved in either house of parliament that has to be passed by a majority in each house and 2/3 members of each house are present and voting.

 

c. Special majority and consent of States: There are certain provisions, which require that apart from special majority half of the state legislatures in India must also give their consent for the amendment in the Constitution.

 

These are the three processes through which constitutional amendments can be made. Even for addition of a new article three processes are to be followed. But in case of Article 35A, none of the processes were followed. Article 368 make it amply clear that the constitutional amendment power rests with the Parliament and it has the unlimited power in this regard. It will not be an overstatement to say that procedures established by law have not been followed in case of Article 35A. The procedure of amendment, i.e. special majority plus half of the state, ensures that no single state can able to highjack the amendment process. Hence, it is obvious that Article 35A cannot withstand the legal scrutiny and it should be repealed. Article 370 is the temporary provision whereas Article 368 is the expressed provision of the Constitution and bypassing Article 368 means that Constitution would become the dead document though it has to be dynamic.

 

 

 

 

 

 

Article 35A was added in the constitution of India clandestinely and in clear violation of constitutional provisions. Constitution (Application to Jammu and Kashmir) Order, 1954 extended the various provisions of the Constitution of India. Surprisingly, Article 35A was added in Part-III that deals with Fundamental Rights. It was the travesty of justice that the provision, which violates fundamental rights, was to be added in the chapter that deals with Fundamental Rights. This provision says:

 

"35-A. Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu & Kashmir, and no law hereafter enacted by the Legislature of the State,

 

(a) defining the classes. of persons who are or shall be, permanent residents of the State of Jammu & Kashmir; or

 

(b) conferring on such permanent residences any special rights and privileges or imposing upon other persons any restrictions as respects: -

 

(i) employment under the State Government;

 

(ii) acquisition of immovable property in the State;

 

(iii) settlement in the State; or

 

(iv) right to scholarships and such other forms of aid as the State Government may provide, 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 provisions of this part."

 

Article 35A gives carte-blanche to the state government to discriminate, humiliate, oppress and suppress the people on the name place of birth, region, caste and gender in violation to the mandates of the Constitution of India. It apt to mention here that Article 35A violates the basic structure of the constitution.

 

 

Article 35A is the biggest constitutional fraud in the history of India. Ironically, a party (i.e. Congress) that was instrumental in the independence of India has become partner in crime because Article 35A was inserted in the Constitution of India with the collusion of Nehru and Kashmiri leaders. People had looked upon this grand old party with the hope that justice would be done with them but the party betrayed. Children celebrate Bal Diwas every year and Pandit Jawahar Lal Nehru is called Chacha Nehru because it is being told that he loved children a lot. But where does his love went in case of Article 35A, which has spoiled, and still spoiling, the lives of lakhs of children in J&K. Pandit Nehru closed his eyes over the plight of people and he actively perpetuated discrimination in Jammu and Kashmir. The dream of unified India has been in shambles because of this unconstitutional provision. It is a high time that this provision must go from the Constitution, as Article 35A is fraudulent, discriminatory and oppressive. It even violates the basic structure of the Constitution. Article 35A cannot stand either on constitutional validity or procedural appropriateness or basic structure of the Constitution. Right now, the matter is pending in Apex Court, which has said that it will look into this matter from both procedural and basic structure aspects. It is highly hoped that Article 35A will be abrogated.