AN ERRONEOUS NOTION

First of all, I would like to point out that the very title of this debate is
erroneous and therefore A Complete Misnomer. As a matter of fact, the recent
Presidential Order merely seeks to amend the Article 370 using the powers
provided to the President by Article 370(3). The amended Article 370 very much
stands part of the Constitution which makes the term "Abrogation" in the title of
this debate a complete misnomer.
Similarly, in case of Article-35A, the notification merely supersedes the
previously issued presidential order by the latest presidential order which has
been issued for more than 45 occasions since it was firstly issued in 1954.
Perhaps, it should have been correctly titled as “Supersession and Amendment
to Article 370 & 35-A respectively”.

HISTORICAL BACKGROUND
Article 370:- The article was drafted in Part XXI of the Constitution titled
as Temporary, Transitional and Special Provisions.
The Chief architect of the Indian constitution Dr Ambedkar refused
to draft article 370 due to his reservations about this article and therefore
it was drafted by Gopal Swami Ayangar, the former Dewan of Maharaja
Hari Singh in consultation with Seikh Abdullah, the than PM of J&K. Pt
Nehru himself termed it as temporary and uttered the words “ghiste-
ghiste ghis jayega”.
Home minister Gulzarilal Nanda (1963–1966) opined that the terms
for the "special status" granted to Jammu and Kashmir in this Article
included a "very simple" process to amend, by an Executive Order of the
President of India.
Article 35-A:- The article originated from the official notification of
Maharaja Hari Singh of J&K State in 1927 and 1932 defining rights and
status of the Permanent Residents and the Migrants. Article 35A was
inserted in the Constitution of India through the 1954 Presidential Order
as a result of Delhi Agreement of 1954 between Seikh Abdullah and Pt
Nehru.

GENUS & SPECIES

Article 370 stands as the Genus – Enabling Provision w.r.t. J&K, and
Article (35A) as the Species – It derives its power from Article 370.

CONSTITUTIONAL SCRUTINY OF ARTICLE 370 & 35A

Temporary & transitional:

From the very title of Part –XXI of the Constitution which provides
for Article 370, one can make out that the framers of the Constitution
never wanted to keep this article permanently. It was meant for the
period when India was at war with Pakistan over the issue of J&K, matter
was ceased by UN and the Indian Constitution was being framed. Since,
all those circumstances gone past long back, it stands as a dead horse
and needs to go.

Ultra-vires the Constitution:

Article 35-A is, allegedly, ultra vires the basic structure of the
Constitution since it violates the Constitutional procedures established by
law. Addition or deletion of an Article amounted to an amendment to the
 Constitution which could be done only by Parliament as per procedure laid
down in Article 368. But, Article 35A was never presented before
Parliament. This meant the President had bypassed Parliament in this
order to add Article 35A. Article 370 does not anywhere confer on the
President legislative or executive powers so vast that he can amend the
Constitution or perform the function of Parliament. It has been brought
about by the executive organ when actually the right of amendment of the
Constitution lies with the legislative organ.

Violation of Fundamental Rights:

The PRC classification created by Article 35A suffers from the
violation of Article 14, Equality before the Law. The non-resident Indian
citizens cannot have the rights and privileges, same as permanent
residents of Jammu and Kashmir.

Abridgement of the Constitution:

This also meant that the amending power of Parliament under
Article 368 of the Constitution itself was abridged in its application to
Jammu and Kashmir, another amendment, without any reference to
Parliament. When the President of India does not have legislative powers,
he performed the function of Parliament.

SOCIO-ECONOMIC PROBLEMS

Sense of Alienation:
These provisions have prevented the integration of the state of J&K
and its people with the Indian Union. There is an inherent sense of
alienation among the people of J&K and rest of India.
These provisions have kept the people way from each other as
these provisions have not allowed the people to settle with each other due
to various restrictions imposed by way of their applications.

Adversely affecting rights of women:

Violation of the right of women to ‘marry a man of their choice’ by
not giving the heirs any right to property, if the woman marries a man
that is not a permanent resident. Therefore, her children are not given
Permanent Resident Certificate and thereby considering them unfit for
inheritance.

Violating rights of SC/STs:

It facilitates the free and unrestrained violation of fundamental
rights of those workers and settlers like Scheduled Caste and Scheduled
Tribe people who have lived there for generations.
The Valmikis who were brought to the state during 1957 were
given Permanent Resident Certificates on the condition that they and their
future generations could stay in the state only if they continued to be
safai-karmacharis (scavengers). They have been denied the right to quit
scavenging and choose any other profession.
The STs of the state do not have their representation in the state
assembly as they have not been provided with the reservation as
prevailing in the rest of India.
Affecting economic development:
 The industrial sector & whole private sector suffers due to the
property ownership restrictions. Good doctors don't come to the state for
the same reason. So, the eco-system for economic development of the
state has been impaired due to the provisions of article 35A.

West Pakistani Refugees:

It ruins the status of West Pakistani refugees. Being citizens of India
they are not stateless persons, but being non-permanent residents of
Jammu and Kashmir, they cannot enjoy the basic rights and privileges as
being enjoyed by permanent residents of Jammu and Kashmir.

Promoting Discrimination:
It 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. Children of non-state
subjects do not get admission to state colleges and not provided with
scholarships. People are not provided with universal government aid.

MODUS OPERANDI OF SUPERSEDING/AMENDING

1. J&K Governor’s Proclamation dated 20 Jun 2018 using his powers
provided by Section 92 of the J&K Constitution.

2. Home Ministry’s Notification GSR 1223E dated 19 Dec 2018

imposing President’s rule in J&K using his powers vide Article 356 & 357 of
the Indian Constitution on the recommendation of the Governor of the
state.
3. The Constitution (Application to Jammu and Kashmir) Order, 2019
(C.O. 272) under Article 370 dated 05 Ag 2019 - in exercise of the powers
conferred by clause (1) of article 370 of the Constitution.
4. NOTIFICATION on the 6th August, 2019 G.S.R. 562(E).—
DECLARATION UNDER ARTICLE 370(3) OF THE CONSTITUTION "C.O. 273"
- In exercise of the powers conferred by clause (3) of article 370 read with
clause (1) of article 370 of the Constitution of India, the President, on the
recommendation of Parliament.

LEGALITY OF THE PROCEDURE

(1) The procedure and power to supersede Article 35A is drawn from
clause (1) of the Article 370 which requires the following:-
(a) Presidential order - The Constitution (Application to Jammu
and Kashmir) Order, 2019 (C.O. 272) under Article 370 dated
05 Aug 2019
(b) Concurrence of the State of J&K - J&K Governor’s
Proclamation dated 20 Jun 2018 vide Section 92 of the J&K
Constitution.

(2) The procedure and power to amend/to make inoperative drawn

from clause (3) of Article 370 provides the power to the President
requires the following;-
 (a) Notification by President - NOTIFICATION on the 6th
August, 2019 G.S.R . 562(E);
(b) Recommendation of the Constituent Assembly of J&K -
The Constitution (Application to Jammu and Kashmir) Order,
2019 (C.O. 272) under Article 370 dated 05 Ag 2019 – sub
clause (c) & (d) of added clause (4) of Article 367 of
Constitution.
Note: The concerned notifications including Presidential orders have been
duly passed by the Parliament to effect the changes made.

It is clear from the above that the entire exercise undertaken by the
Central Government to make Article 370 inoperative and superseding Article 35A
has been carried out within the constitutional confines. All possible and practical
care has been taken to keep the constitutional proprietary, parliamentary
procedures and rules of business.
Perhaps, the credit goes to the government to carry out the entire
exercise in the only possible and practical way to remove the long standing
constitutional fraud in form of Article 35-A and entirely undesirable Article 370
from the Constitution of India.

CONCLUSION

As Article 35A was inserted in the Constitution through a presidential

order and not through the prescribed way of article 368. Questions have always
been raised about its constitutional validity. It has never been tested on the floor
of the Parliament since its mischievous insertion into the constitution. If there is
anything in our constitution which can be termed as Unconstitutional or extra-
constitutional, it is article 35-A.
As far as article 370 is concerned, having been provided for temporary
and transitional period, it should have been written off long back. I has
completely lost its relevance and rather creating impediments in the process of
complete integration of J&K with the Indian Union.
In view of the above, one can conclude that making article 370
inoperative and superseding of article 35A cannot be termed as unconstitutional
rather the move has actually removed a constitutional fraud in the form of 3A.
 Appendix to Article

Modus Operandi of superseding/amending

1. J&K Governor’s Proclamation dated 20 Jun 2018 using his powers
provided by Section 92 of the J&K Constitution.

2. Home Ministry’s Notification GSR 1223E dated19 Dec 2018

imposing President’s rule in J&K using his powers vide Article 356 & 357 of
the Indian Constitution on the recommendation of the Governor of the
state.
Effects :
(i) All Executive and Legislative powers of the J&K state assumed by the
President.
(ii) Parliament assumes the role of J&K Legislative assembly including
aiding and advising the President/Governeor.
(iii) President conferred the Governor with powers of the Government of
J&K and assumed the role of legislative assembly.

3. The Constitution (Application to Jammu and Kashmir) Order, 2019

(C.O. 272) under Article 370 dated 05 Ag 2019 - in exercise of the powers
conferred by clause (1) of article 370 of the Constitution.
Effect:-
(i) Superseded the Constitution (Application to Jammu and Kashmir)
Order, 1954 as amended from time to time popularly known as Article 35-
A.
(ii) Whole of the Constitution became applicable to the State of Jammu
and Kashmir
(iii) Added clause (4) to Article 367 (Interpretation) modifying the
interpretation of terms w.r.t J&K-
(a) references to this Constitution or to the provisions thereof
shall be construed as references to the Constitution or the
provisions thereof as applied in relation to the said State;
(b) references to the person for the time being recognized by the
President on the recommendation of the Legislative Assembly of the
State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the
advice of the Council of Ministers of the State for the time being in
office, shall be construed as references to the Governor of Jammu
and Kashmir;
(c) references to the Government of the said State shall be
construed as including references to the Governor of Jammu and
Kashmir acting on the advice of his Council of Ministers; and
(d) in proviso to clause (3) of article 370 of this Constitution, the
expression “Constituent Assembly of the State referred to in clause
(2)” shall read “Legislative Assembly of the State”.”

4. NOTIFICATION on the 6th August, 2019 G.S.R. 562(E).—

DECLARATION UNDER ARTICLE 370(3) OF THE CONSTITUTION "C.O. 273"
- In exercise of the powers conferred by clause (3) of article 370 read with
clause (1) of article 370 of the Constitution of India, the President, on the
recommendation of Parliament.
Effects :-
(i) All clauses of article 370 ceased to be operative.
 (ii) All provisions of Indian Constitution became applicable to the State
of Jammu and Kashmir notwithstanding anything in this Constitution or of
the Constitution of Jammu and Kashmir or anything elsewhere.

Legality of the Procedure

For Superseding Article 35-A-

The procedure and power to effect change with respect to J&K
primarily rest with clause (1) of the Article 370 which requires the
following:-
(3) Presidential order - The Constitution (Application to Jammu and
Kashmir) Order, 2019 (C.O. 272) under Article 370 dated 05 Ag
2019
(4) Concurrence of the State of J&K - J&K Governor’s Proclamation
dated 20 Jun 2018 vide Section 92 of the J&K Constitution.

For Amending Article 370-

Clause (3) of Article 370 provides the power to the President
requires the following;-
(1) Public Notification by President - NOTIFICATION on the 6th
August, 2019 G.S.R . 562(E);
(2) Recommendation of the Constituent Assembly of J&K - The
Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O.
272) under Article 370 dated 05 Ag 2019 – sub clause (c) & (d) of
added clause (4) of Article 367 of Constitution.