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sArticle 35A and the basic structure In pursuit of an art smuggler Silence is not a virtue The larger picture on GDP numbers Untl dams do us part CREDI HINDU
Article 35A and the basic structure the basic Structure Topic- GS Prelims,GSM2 Context- Any move to do most solemn promises at the eaway with it will damage the heart of the Indian federation. PIC CREDIT-THE HINDU Page-8
BASIC ARGUMENTS The petitioner in the Supreme Court now makes two basic arguments. Article 35A, it claims, could not have been introduced through a process outside the ordinary amending procedure prescribed under Article 368 Even assuming that the President possessed this power, the petitioner asserts, Article 35A infringes the Constitution's basic structure. Both these claims, however, suffer from fundamental flaws. As we have already seen, Article370 is as much a part of the Constitution as Article 368
That the framers were deeply cognisant of the fact that the Constitution accorded J&K exceptional status is free of any doubt. It is particularly clear from the address made by N. Gopalaswami Ayyangar, the chief drafter of Article 370, to the Constituent Assembly on October 17, 1949: "Kashmir's conditions are...special and require special treatment," he said- "it is one of our commitments to the people and the Government of Kashmir," that in matters outside the scope of the Instrument of Accession no additions would be made "except with the consent of the Constituent Assembly which may be called in the state for the purpose of framing its
That Article 370 is the embodiment of this promise was recognised as early as in 1959 by the Supreme Court in Prem Nath Kaul v.State of J&K. A few years later, another Constitution Bench of the court, in Sampat Prakash v.State of J&K, further clarified the position. "Art. 370 of the Constitution has never ceased to be operative," it held. "and there can be no challenge on this ground to the validity of the Orders passed by the President in exercise of the powers conferred by this Article." If anything, as A.G. Noorani has argued, there is a fine case to be made that all orders extending India's Constitution to J&K subsequent to 1956, when the State's Constituent Assembly was disbanded, are a nullity. But that the presidential order incorporating Article 35A, on the express recommendation of the State's Constituent Assembly, is without legal authority is an argument that is destined to fail.
THE STRUCTURE It is equally fallacious to suggest that Article 35A can somehow be subject to a basic structure challenge. The canonical rule established in 1973, in Kesavananda Bharati v. State of OW of a under Artic 368 a 0 na and that the Constitutio n's basic cannot be abrogated, was based atur the text of Article nterpretation Its logic doesn't extend reflexivity to amendments made under Article 370, a provision, which in and of itself, is essential to maintaining India's federal structure. Besides, more than six decades have elapsed since Article 35A was inserted, and by now vast tracts of properties would have doubtless changed hands.
In such cases, where constitutional amendments create vested rights in persons, as the Supreme Court held in Waman Rao v. Union of India, an amendment made prior to the decision in Kesavananda cannot be susceptible to a basic structure challenge. To hold otherwise would have consequences far more devastating than might immediately be apparent.
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