Thursday, May 23, 2019 10:10 AM

In defence of Article 35A of the Constitution of India

The Supreme Court is hearing a petition  challenging Article 35 A of the Constitution of India - Special Provision for the State of Jammu and Kashmir - introduced as per Constitution (application to Jammu and Kashmir) Order 1954.

Separate constitution benches of the SC Court in Purandal Lakhanpal vs President of India and others ((1962) 1 SCR 688, AIR 1961 SC 1519, Sampat Prakash vs. State of Jammu and Kashmir and others (1969) 2 SCR 365, AIR 1970 SC 1118) have already adjudicated on the article 35 A.  The contentions were rejected in those cases. They are no more res-integra. 

For attainment of the goals of Part- IV Directive Principles of State Policy and the Fundamental Rights under Part- III, unity in diversity of India is to be protected. Further, the special status guaranteed to the state of Jammu and Kashmir by the constitution of India requires protection as any alteration would be against the policy of federalism envisaged by the framers of the constitution.

Considering the given geographical and topographical position of the Jammu and Kashmir, invasion by tribals at the instigation, aid and support of Pakistan, the majority of Muslim community in Kashmir ,and its identity etc., it can be seen that Jammu and Kashmir has acceded to India in unique circumstances and it possess unique problems which require a unique solution.

The state of Jammu and Kashmir is the only state in the Union of India which had negotiated the terms of its membership with the union. As part of this negotiation process, the relationship of the Jammu and Kashmir state with the Union of India and constitutional machinery was a subject of prolonged and protracted discussion and debate between the leaders of the Jammu and Kashmir and the Union of India under the leadership of Prime Minister Jawaharlal Nehru and prime minister of Jammu and Kashmir, Sheikh Muhammad Abdullah.

Jammu & Kashmir was the only state to declare its intention to have its own constitution drafted by its own constituent assembly, as far back as March 5, 1948. At the time of partition and after, it was free to accede to Pakistan or India, or to become an independent country. But it decided to accede to India on specific terms, despite the fact that religiously the majority population was following Islam. This unique circumstance was a matter of prime consideration for evolving constitutional machinery to prescribe relationship of the state with the Union of India. It is well documented and recorded that “Jammu & Kashmir state now stands acceded to the Indian Union in respect of three subjects namely foreign affairs, defence and communication. It will be for the constituent assembly of the state when convened, to determine in respect of which other subjects the state may accede’’. Article 370 embodies this basic principle of solemn compact pact. It is the machinery to integrate the people of Kashmir with India with their heart and soul and to stop their alienation.

Article 370 has been repeatedly abused after the 1954 Order practically negating it and the autonomy of the state. Among the changes brought about, the most important is restricting the powers of legislature of the state, extension of  powers of the union parliament, application to the state of financial provisions of the constitution, provisions relating to emergency, all India services, superintendence, directions and control of the elections of the state legislature and several other matters. Article 35-A is very much necessary, in this context, not to cause further alienation of Kashmiri people from India. Article 35-A itself is part of fundamental rights under part-III and is not in violation of any other fundamental right including Article 14.


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