Srinagar, Mar 29 (KNS): J&K Anjuman Sharie Shian’s Aga Syed Muntazir Mehdi said that the statement of Union Finance Minister and the BJP leader Arun Jaitley that Article 35A is “constitutionally vulnerable and is an impediment to the economic development of Jammu and Kashmir” is misrepresentation of the Constitution for Electoral Millage.
In a statement issued to KNS, Aga Syed Muntazir Mehdi said, “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 writes, which was debated for over five months before forming part of the Constitution as adopted in 1950.”
He said with the disbanding of J&K’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.
“That this is the case can also be gleaned from a reading of Article 368, which contains the ordinary powers of constitutional amendment as applicable to other parts of India. 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. What’s more, 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,”, and “it is through this tunnel that a good deal of traffic has already passed and more will,” Aga Muntazir added.Click Here To Follow Our WhatsApp Channel
He said, as we have already seen, Article 370 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 Constitution.”
He said, “It is equally fallacious to suggest that Article 35A can somehow be subject to a basic structure challenge. The canonical rule established in 1973, a, 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,” Aga Muntazir said. (KNS)