27th Aug 2018 THE HINDU Editorial Analysis ha ii
Article 35A and the basic structure Article 35A was inserted into the Constitution as part of a raft of amendments made through a 1954 presidential order, imposed under Article 370 Broadly, it empowers Jammu and Kashmir (J8K) to not only define a class of persons as constituting "permanent residents" of the State but also allows the government to confer on these persons special rights and privileges with respect to matters of public employment, acquisition of immovable property in the State, settlement in different parts of the State, and access to scholarships or other such aids that the State government might provide
The Article further exempts such legislation from being annulled on the ground that they infringe one or the other of the fundamental rights guaranteed by the Constitution. According to the petitioner, this immunity granted to J8K's laws is discriminatory, and, therefore, Article 35A should be declared unconstitutional The law on the subject is well settled. Previous Benches have already put their imprimatur on the 1954 presidential order. In any event, even if the court were to look beyond existing precedent, a proper reading of the text of Article 35A, and its constitutional history, will establish that the present petition is meritless; that Article 35A is not amenable to a conventional basic structure challenge India's Constitution, as the political scientist Louise Tillin has explained establishes a form of asymmetric federalism, in which some States enjoy....
...greater autonomy over governance than others This asymmetry is typified by Article 370- a provision, as Ms. Tillin s, which was debated for over five months before forming part of the Constitution as adopted in 1950. In its original form, Article 370 accorded to J8K a set of special privileges, including an exemption from constitutional provisions governing other States In accord with J8K's Instrument of Accession, it restricted Parliament's powers to legislate over the State to three core subjects: defence, foreign affairs and communications. Parliament could legislate on other areas only through an express presidential order, made with the prior concurrence of the State government. Where those subjects went beyond the Instrument of Accession, the further sanction of the State's Constituent Assembly was also mandated
Finally, the Article also granted the President the power to make orders declaring the provision inoperative, but subject to the condition that this authority could be exercised only on the prior recommendation of the State's Constituent Assembly With the disbanding of J8K's Constituent Assembly in 1956, the question of suspending Article 370 was rendered moot. In the process, the asymmetry in India's federalism was fortified One of the provisos to the clause (ironically made through the same presidential order which introduced Article 35A) makes it clear that 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, after securing the J&K government's prior assent
Such amendments will also need to be ratified by the State's Constituent Assembly. Indeed, as the Union Home Minister of the time, Gulzari Lal Nanda, put it in the Lok Sabha on December 4, 1964, Article 370 represents the only way of taking the Indian Constitution into J&K: "It is a tunnel," he said, and "it is through this tunnel that a good deal of traffic has already passed and more will." 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 It is particularly clear from the address made by N. Gopalaswami Ayyangar, the chief drafter of Article 370, to the Constituent Assembly on
.....ctober 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 Constitution. 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 J8K, 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."
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 Kerala, that the powers of amendment under Article 368 are not plenary and that the Constitution's basic features cannot be abrogated, was based expressly on an interpretation of the text of Article 368 Its logic doesn't extend reflexively 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
The larger picture on GDP numbers The new data on GDP have raised a political storm, with the back series for GDP growth since 1993-94 becoming available. Its importance lies in the fact that in 2015, a new series was announced which showed India's GDP growing faster than the earlier series had shown. This was politically advantageous to the current government which came to power in 2014 But, in the new series, the rate of growth during the last two years of UPA Il was also higher than what the old series showed so that the economic performance under the UPA also did not look so bad. What the new series also showed was that the NDA..
.to represent the entire production . Technology poses another challenge. Older items become redundant and newer ones need to be included. So, as time passes, the earlier series of data does not represent the true growth rate of the economy and needs to be modified. That is why the old series is replaced by a new one periodically Analysts have demanded a back series whenever a new series is prepared. not generated automatically. This is also why the new committee (which has presented its report) was set up The difficulty with the new series (2011-12) was because it not only changed the bundle of items used to calculate growth but also used a
. The implicit admission is that the economy did grow faster under the UPA but due to wrong policies (allowing the fiscal deficit to rise, undue expansion of bank loans, et). The argument is that these have led to non- performing assets (the twin balance sheet problem), higher inflation and current account deficit But the higher growth was on the back of a38% rate of investment and a 36% rate of savings achieved by 2007-08. These are now down to 32% and 30%, respectively. The 2007-08 crisis was a global one but the Indian economy continued to grow when many other economies were slowing down due to increase in fiscal deficit from its record low in 2007. The crisis of 2012-13 was due to the rise in petroleum prices and largely due to international factors However, the current slowdown is largely policy induced and less due to..
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