Prof. Bhim Singh who was a Legislator three times in the Legislature of J&K, a Sr. Advocate, Executive Chairman of State Legal Aid Committee, J&K who has been fighting for Human Rights of all human beings on earth has respectfully raised the following questions on the characteristic of Article 35-A in the Constitution which he hopes may be answered by every supporter and opponent to the formulation of Article 35-A which was inserted in the Indian Constitution by the President of India in 1954 without referring it to the Parliament or without testing its legality before any Constitution Bench/Court.
Q.1. Who has introduced/formulated the Constitution of India which was promulgated on January 26, 1950? Who had approved that Constitution of India?
Ans. It is very simple for all of us to answer that the Constitution of India was formulated by the Constituent Assembly of India after a long discussion/debate for nearly three years after India was declared independent in 1947. It was finally promulgated on January 26, 1950.
Q.2. When Article 35-A was promulgated and by whom? Who was authorized to amend any part of the Constitution according to the Constitution itself? Who was competent to amend any Article/Provision contained in any Article ranging from Article 12 to 35 as this chapter dealt with Fundamental Rights in the Constitution which were guaranteed to all citizens of India?
Ans. No legislature or even authority enjoyed any right/privilege to amend any provision guaranteed in any Article relating to the Fundamental Rights in the Indian Constitution. The Parliament was later declared competent within the meaning and scope of Article 368 of the Indian Constitution was competent to amend any provision in the Fundamental Rights in accordance with the procedure and conditions provided in the Constitution. No state had any competence to even touch any provision in Chapter-III on the Fundamental Rights. The procedure as laid down in the Constitution has to be followed by the Parliament.
Q.3. How and by whom Article 35 was amended by adding ‘A’ and introduce Article 35-A in the Constitution and when? Under what authority it was introduced?
Ans. That is very important question which needs to be understood by all those who are opposing this amendment and those who are supporting Article 35-A. Article 35-A was promulgated under the Presidential Order naturally signed and issued by the then President of India, Dr. Rajendra Prasad in May 1954. The President of India had constitutional power as the President of India to introduce any amendment on the recommendation of the Prime Minister and his Council of Ministers. It was recommended by the then Prime Minister Pt. Jawaharlal Nehru and promulgated by a Presidential Order on May 14, 1954. The Presidential Order, according to the command of the Constitution of India could not have survived beyond six months. Therefore such ordinance was valid till December 1954 only. This Presidential Order had no legal sanction beyond December 1954.
Q.4. What were the constitutional effects of this amendment in Article 35?
Ans. This amendment could have been utilized/used by the Govt. of J&K to frame laws/rules in connection with the application of Fundamental Rights to the citizens of India in J&K for a period of six months only. It would have become a law only had Parliament of India taken up the matter and passed this amendment in order to bring a change in Article 35 in accordance with the procedure laid down. This Presidential Order could have effected the application of Fundamental Rights to the Permanent Residents of J&K only for a period of six months. Any law could have been framed by the State of J&K to impose any restriction on the special rights or privileges of the citizens of India residing as Permanent Residents in J&K. The Govt. of J&K should have used its dictatorial powers to impose restrictions upon the Permanent Residents of J&K with respect to any or the following manner for a period of six months, that too in respect of;
i). Employments under the State Government.
ii). Acquisition of immovable property in the State.
iii). Settlement in the State by outsiders. It had no constitutional/legal dependence with the provisions contained in Article 370 of the Indian Constitution.
(To be continued)
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