Significance of Art 35A and Art 370

What is the issue?

• The Supreme Court is hearing petitions challenging the validity of Art 35A.
• The provisions need an understanding in the context of the solemn promises at the heart of the Indian federation.

What is Art 35A?

• Art 35A was inserted as part of the amendments made through a 1954 presidential order, imposed under Article 370.
• It empowers J&K to define a class of persons as constituting “permanent residents” of the State.
• Also, it allows the government to confer on these persons, special rights and privileges.
• These relate to matters of

1. public employment
2. acquisition of immovable property in the State
3. settlement in different parts of the State
4. access to scholarships
5. other such aids that the State government might provide

• It exempts such legislation from being annulled on the ground that they infringe on any of the fundamental rights.

What is the case?

• The petition considers this immunity granted to J&K’s laws as discriminatory.
• It also claims that Art 35A could not have been introduced outside the ordinary amending procedure prescribed under Article 368.
• It thus calls for declaring Art 35A unconstitutional.
• A three-judge Bench of the court intends to consider if Article 35A infringes the Constitution’s basic structure.
• Based on this, it would decide if the case has to be referred to a larger bench for further examination.

How are Art 35A and Art 370 justified?

• The law on the subject is well settled as previous Benches have already shown approval for the 1954 presidential order.
• Even otherwise, Art 35A is not amenable to a conventional basic structure challenge.
• This is because India’s Constitution establishes a form of asymmetric federalism.
• Clearly, some States enjoy greater autonomy over governance than others.
• This asymmetry is typified by Article 370.
• In its original form, Article 370 accorded to J&K a set of special privileges.
• This includes an exemption from constitutional provisions governing other States.
• Also, under J&K’s Instrument of Accession, it restricted Parliament’s powers to legislate over the State to three core subjects.
• These are defence, foreign affairs and communications.
• Parliament could legislate on other areas only through an express presidential order.
• This should be made with the prior concurrence of the State government.
• For subjects beyond the Instrument of Accession, the further sanction of the State’s Constituent Assembly was also mandated.
• Finally, the Art 370 also granted the President the power to make orders declaring the provision inoperative.
• But this authority could be exercised only on the prior recommendation of the State’s Constituent Assembly.
• Even changes made to the Constitution under Article 368 will not mechanically apply to J&K.
• For such amendments to apply to the State, specific orders must be made under Article 370.
• This is only after securing the J&K government’s prior assent.
• Moreover, such amendments will also need to be ratified by the State’s Constituent Assembly.
• So evidently, Art 370 represents the only way of taking the Indian Constitution into J&K.
• Also, Article 370 is as much a part of the Constitution as Article 368, thereby to justify the validity of Art 35A.

Source: The Hindu