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Article 35A & Article 370

Article 35A & Article 370

Why in news?

  • The Supreme Court is hearing petitions challenging the validity of Art 35A.
  • The provisions need an understanding in the context of the solemn promises at the heart of the Indian federation.

What is Art 35A?

  • Art 35A was inserted as part of the amendments made through a 1954 presidential order, imposed under Article 370.
  • It empowers J&K to define a class of persons as constituting “permanent residents” of the State.
  • Also, it allows the government to confer on these persons, special rights and privileges.

These relate to matters of

  • public employment
  • acquisition of immovable property in the State
  • settlement in different parts of the State
  • access to scholarships
  • other such aids that the State government might provide
  • It exempts such legislation from being annulled on the ground that they infringe on any of the fundamental rights.

What is the case?

  • The petition considers this immunity granted to J&K’s laws as discriminatory.
  • It also claims that Art 35A could not have been introduced outside the ordinary amending procedure prescribed under Article 368.
  • It thus calls for declaring Art 35A unconstitutional.
  • A three-judge Bench of the court intends to consider if Article 35A infringes the Constitution’s basic structure.
  • Based on this, it would decide if the case has to be referred to a larger bench for further examination.

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.

 

Indian Polity

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