Wednesday, Nov 21, 2018 | Last Update : 11:28 PM IST
Article 35A gives a free hand to the state to discriminate between citizens of India on an unfair basis.
Addition or deletion of an article amounts to amendment to the Constitution, which could be done only by Parliament as per the procedure laid down in Article 368 of the Constitution, but Article 35A was never presented before Parliament. It means the President of India had bypassed Parliament. This confirms that the amending power of Parliament under Article 368 itself was abridged in its application to Jammu and Kashmir without reference to Parliament.
The classification created by Article 35A suffers from the violation of the Articles 14, 15, 16, 19 and 21 of the Constitution. Indian citizens cannot have the same rights and privileges as enjoyed by the permanent residents of Jammu and Kashmir (see box). That apart, the industrial sector and the whole private sector also suffers due to the property ownership restrictions. So, good doctors do not prefer to come to the state for the same reason.
Article 35A also gives a free hand to the state government and politicians to discriminate between citizens of India on an unfair basis and give preferential treatment to some by trampling over others, since the non-residents of the state are debarred from buying properties, getting a government job or voting in the local elections. Some of the issues to be decided by the Supreme Court are:
1. Whether the powers of the Presi-dent under Article 370 are Executive or Legislative or Constitutional and by virtue of nature of powers, whether there are any express limitation upon such powers while making any modification and in the matter of application of any article to the state of J& K.
2. Whether the powers of the President under Article 370 are not coextensive with the powers of Parliament under Article 368 and whether there is any distinction between the nature and width of powers of Parliament under Article 368 and nature and width of the powers of the President under Article 370?
3. Whether the changes, modification or omission made in Article 16, 19, 35 and addition of Article 35A by the President while applying Part III in relation to the state of J&K are in the nature of substantial amendment/additions changing the entire constitutional scheme of Part III is the usurpation of powers of Parliament under Article 368?
4. Whether the impugned Article 35A, whereby the powers of Parliament to make law violating the fundamental rights of the citizens have been transferred to the state Legislature and such a law having been rendered non-justiciable under law is beyond the powers of the President to make modification and restrictions under Article 370?
Article 35A was not added to the Constitution by following due procedures prescribed for amendment of the Constitution under Article 368. Article 370 does not confer legislative or executive powers to the President to amend the Constitution or perform function of Parliament. It has been brought by the Executive organ when actually the right of amendment of the Constitution lies with the legislative organ. It not only violates the Constitutional procedures established by law but also against the fundamental rights of Indian citizens guaranteed under Articles 14, 15, 16, 19, 21 and basic structure of the Constitution.
Hence, the Supreme Court, being guardian of the Constitution and protector of basic rights, can decide on the issue.
(The writer is a practising advocate in the Supre Court)