Is Art 35A and Art 370 justified?
The law on the subject is well settled as previous Benches have already shown approval for the 1954 presidential order. Even otherwise, Art 35A is not amenable to a conventional basic structure challenge. This is because India’s Constitution establishes a form of asymmetric federalism. Clearly, some States enjoy greater autonomy over governance than others. This asymmetry is typified by Article 370. In its original form, Article 370 accorded to J&K a set of special privileges. This includes an exemption from constitutional provisions governing other States. Also, under J&K’s Instrument of Accession, it restricted Parliament’s powers to legislate over the State to three core subjects. These are defence, foreign affairs and communications. Parliament could legislate on other areas only through an express presidential order. This should be made with the prior concurrence of the State government. For subjects beyond the Instrument of Accession, the further sanction of the State’s Constituent Assembly was also mandated. Finally, the Art 370 also granted the President the power to make orders declaring the provision inoperative. But this authority could be exercised only on the prior recommendation of the State’s Constituent Assembly. Even changes made to the Constitution under Article 368 will not mechanically apply to J&K. For such amendments to apply to the State, specific orders must be made under Article 370. This is only after securing the J&K government’s prior assent. Moreover, such amendments will also need to be ratified by the State’s Constituent Assembly. So evidently, Art 370 represents the only way of taking the Indian Constitution into J&K. Also, Article 370 is as much a part of the Constitution as Article 368, thereby to justify the validity of Art 35A.