Can Article 35A be struck down? If your answer is yes, then what arguments can you give in support of your views? After the petition filed by the Delhi-based NGO – We the Citizens, there has been widespread attention that has girded this article.
Article 35A was inserted in the constitution of India by presidential order in 1954 as a part of a raft of amendments, under Article 370. Broadly speaking, it empowers the state of Jammu and Kashmir to not only define a class of persons as permanent residents of the state, but also allows the government to confer on these persons special rights and privileges with respect to public employment, acquisition of immovable property in the state, settlement in different parts of the state, access to scholarships and other such aids. The article also exempts such legislation from being annulled on the grounds that it does not infringe any of the fundamental rights enlisted in the Indian Constitution.
According to the petitioner, this article is discriminatory and should be declared unconstitutional. The petition states that Article 35A is against the “very spirit of oneness of India” – as it creates a “class within a class of Indian citizens.” Restricting citizens from other states from getting employment or buying property within Jammu and Kashmir, is a violation of the fundamental rights under Articles 14, 19 and 21 of the Constitution.
Apart from violating the fundamental rights of the constitution, it is also raising questions on the process of adding Article 35A into the constitution. Does the President have the sole power to make amendments to the provisions of the constitution? Can he bypass the constitutional mechanism of making amendments by the parliament? The presidential order of adding 35A was done under the Article 370 (1)(d), which empowers the president to make modifications and exceptions regarding the state subject with the concurrence of the state government. But Article 370 nowhere mentions that the president has the power to make amendments or insert a new article in the constitution. Article 368 is the only way to make amendments to the various provisions of the constitution.
The Supreme Court in Puranlal Lakhanpal vs. The President of India held that the President has power to ‘modify’ the constitution under Article 370. However, it did not talk about Article 35A and did not clarify whether the President has the sole power to amend the Constitution without following the parliamentary procedure. Thus, the challenge before the court is to evaluate the constitutionality of the manner in which this article was introduced, as the word ‘modify’ may include omission, insertion, removal or addition of any provision/clause/article.
There are two reasons behind the contesting of Article 35A, first, the constitutionality of insertion of Article 35A, and second, the conception of equality among the Indian citizens. Currently, this issue is still awaiting its decision by the apex court, but it must be noted that the problem which is being debated is not just a legal issue, as the socioeconomic and political aspects must not be overlooked.