Dr Ganesh Malhotra  

14th May 2020 is a day to celebrate because Article 35A is history now. On May 14, 1954, the President of India issued an order called the Constitution (Application to Jammu and Kashmir) Order 1954. It came into effect immediately and superseded the Constitution (Application to Jammu and Kashmir) Order 1950. Besides carrying out many modifications and changes, this presidential order ‘added’ to the Constitution of India, a new Article namely 35A as an amendment to Article 35.
The 1954 order stated that it is being issued “in exercise of powers conferred by clause (1) of Article 370 of the Constitution, with the concurrence of the Government of Jammu and Kashmir”. No amendment in Indian Constitution can be done without Parliament without following procedures mentioned in Article 368. Article 35A was never presented before Parliament of India. Unlike other amendments, it appeared in the Constitution as an appendix and was not listed in the list of amendments either. This Article survived a life of more than 65 years without any scrutiny despite being illegitimate in origin. Finally this Article was removed by legal procedure in the Parliament of India.
On 5th August 2019 new Presidential Orders were promulgated which achieved the replacement of the Jammu and Kashmir Constitution with the Indian Constitution. Further, the Order also paved the way for invoking Article 370(3) by replacing the hitherto inoperable references to the “Constituent Assembly of the State” (which ceased to exist in 1956 once the J&K Constitution came into force), with the “Legislative Assembly of the State”. This way, it was made possible for the President to invoke the amended Article 370(3) through the second Presidential Order to overhaul the entire provision to cement the sovereignty of the Indian Constitution.
Home Minister Amit Shah referred to Article 363 in his speech in the Parliament introducing the resolutions relating to Article 370. This is because the said Article effectively takes away the jurisdiction of the Supreme Court or any other Court in relation to a dispute which relates to a covenant or treaty or any other instrument entered into by the Ruler of a Princely State with the Indian Union.
In fact, a combined reading of Articles 363 & 143 would make it clear that any dispute which falls within the scope of Article 363, falls within the exclusive jurisdiction of the President, and the Supreme Court may at best perform an advisory role when such advice is sought by the President under Article 143.
Article 35A was dangerous and its gravity was understood by all the people in the country including political leaders cutting across the party lines. This was evidently seen on 5th August in the behaviour and statements issued by these leaders in and outside the parliament. There was widespread welcome of such move to abrogate such draconian law. The Jammu and Kashmir Reorganisation Bill was passed in Parliament with 2/3rd majority. There was no problem in Lok Sabha but surprise came from Rajya Sabha where unprecedented support came even from some opposition parties. Some directly declared their support and some supported by abstaining from house.
Mayawati-led BSP was one of the first parties to extend support to the Government’s move. Shiv Sena, YSRCP and TRS have also supported the BJP move. AAP leader and Delhi CM Arvind Kejriwal backed the Government’s bold move. Odisha’s BJD, led by Naveen Patnaik, also supported scrapping of Article 370 .
The Congress, the Left parties, the DMK, the MDMK, the SP and the RJD voted against the Bill, while the Trinamool Congress walked out. There was clear divide among the cadre of main opposition party Congress, actual originator this illegal Article 35A. Many senior leaders openly supported the abrogation of this article. Meanwhile, the Congress MP from Assam and party’s chief whip in the Rajya Sabha Bhubaneshwar resigned both from the Congress and the Rajya Sabha, protesting the party’s decision to oppose the resolution revoking Article 35A.
Finally Article 35A is now a history. Resident of J&K as well as Indian citizens who faced atrocious behaviour of this article for more than 65 years can on this day 14th May 2020 can feel relieved. Abrogation of this Article 35A immediately gave basic rights to atleast Women resident of J&K married outside J&K, West Pakistan refugees , Valmikis and Gorkhas. These four categories of people struggled for more than 65 years to get their basic fundamental rights despite being citizens of India. Although their basic rights were snatched by illegal procedure and without any Rule of Law having legislative sanctions but those rights were finally restored by Rule of Law by legitimate procedure designed by Constitution of India.
So finally illegitimate provision got treatment through legitimate procedure.
(The author is J&K based Strategic and Political analyst)
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DISCLAIMER:

The views expressed in the Article above are Dr Ganesh Malhotra’s personal views and kashmiribhatta.in is not responsible for the opinions expressed in the above article.

Courtesy: Daily Excelsior:  14th May, 2020