Article 35A- A Prerogative | Jasvinder Singh

Within the one year of the enforcement of constitution,battle had started between Judiciary and Parliament regarding the abrogation of fundamental rights.From Shankar Prasad case(1951) to the Minerva mills case (1980), various constitutional amendments and judgements had been passed which lead to the emergence of the idea of the 'basic structure of constitution' particularly in the Kesvananda Bharati case (1973), which upholds the idea that parliament  can't alter the basic structure of constitution. Although what is basic structure of constitution is not yet clear,but it states any law or provision which violates the basic structure of constitution shall be void.

Jasvinder Singh

Does the abrogation of Article 35-A violates the basic structure of constitution? Can Article 35-A  of the constitution be struck down?These are some of the questions raised in petition filed in Supreme Court of India by the  Delhi based NGO 'We the citizens'.

Article 35-A had been added into the Constitution of India by the Presidential order,imposed under Article 370.This article provides state subject right to the citizens of J&K,besides it allows the state government to confer on these citizens the special rights and privileges with respect to the matters of public employment, acquisition of immovable property in the state,access to scholarship and other government aide. The petitioner mentioned these privileges to the citizens are discriminatory, therefore demanded the scrapping of Article 35-A.

Article 35-A is prerogative of J&K people. Apart from J&K there are other states like Andhra Pradesh and several north-eastern states which enjoy special privileges. Before independence of India, princely states' citizens were the state subjects. In 1927, Maharaja Hari Singh had granted the state subject right to the citizens of J&K. Pandit Jawaharlal Nehru in constituent assembly had motivated other members of the congress to allocate the right to the J&K people.

The chief drafter of the Article 370 Gopalaswami Ayyangar had pointed out that "Kashmir conditions are special and require special treatment- it is one of our commitment to the people and government of Kashmir" that the matters outside the scope of instrument of accession(this restricted Parliament powers to legislate over the state to three core subjects:defence, foreign affairs and communication) no addition would be made "except with the consent of constituent assembly which may be called in the state for the purpose of farming constitution". Parliament could legislate on others matter only through Presidential order that too with the consent of State assembly.Thus,by Presidential order this article  came into being by keeping in view the special condition of J&K.

At present, Kashmir situation is highly sensitive. From 2014-2017, the rate of youth indulging in militant activities has increased several times due to the growing incidences of human rights violation (source-United nation human rights violation report). In such tense state the highlighted issue of Article 35-A incites the youth more towards nefarious activities. Protests have been witnessed all over the state, and this will strengthen the freedom struggle of militant outfits because their ideology matches the ideology of common people, they too are against the abrogation of this article.

Altough, Article 35-A had never been enacted either by the act of parliament or by the constitution amendment under Article 368. This reveals the fact that its abrogation is very simple.The article does not come under the purview of Article 368 as it is imposed under Article 370 which reveals that it does not directly effect the basic structure of constitution.To some extent it does violate the Article 13 of the constitution. But this can be nullified by taking into consideration law and order situation in the state. Moreover the environmental conditions of J&K are very fragile ,setting up of industries after the abrogation may generate employment but it will ruin the environment in long term perspective. The problem of secondary sector can be overcome by giving more focus on the secondary and tertiary sector.

Presence of this prerogative right does not cause any harmful effect but its absence will definitely lead to the deterioration of peace in the state.Welfare of the citizens is the prime responsibility of the state and article 35-A plays a pivotal role in promoting the idea of welfare. Nevertheless,we are living in a state where constitution is an obligation. Supreme court is the guardian of constitution whose decree is binding on all of us.We can't neglect the court's judgement but if the  judgement will not be in the favour of J&K residents;the state should be ready to face consequences.

About the Author: Jasvinder Singh is a student of B.Sc V. He belongs to Poonch.

Disclaimer: The views of the author are strictly personal and do not necessarily represent the views of the Pir Panjal Post

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