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Not Just Article 370, New Presidential Order Negates 1954 Order on Article 35A as Well

Not Just Article 370, New Presidential Order Negates 1954 Order on Article 35A as Well

Article 35A stemmed from Article 370, which itself has been scrapped and hence the edifice of the former seems to have been done away with.

New Delhi: The presidential order scrapping Article 370 may have also rendered Article 35A inoperative, leaving no requirement for a separate order or amendment to do away with the latter provision.

Issued on Monday, the presidential order has that the notification shall come into effect immediately and it will 'supersede' the earlier presidential order issued in 1954, under which Article 35A was inserted.

Article 35A was inserted by way of the presidential order in 1954, according special rights and privileges to the natives of J&K in matters of employment, education, settlement etc., while also empowering its legislature to frame any law without attracting a challenge on grounds of violating right to equality of people from other states or any other right under the Indian Constitution.

The 2019 presidential order, however, starts by saying that the latest order is in supersession of the 1954 order, which would imply that whatever was laid down in 1954 order has been rendered inoperative with the passage of the new one.

"This Order may be called the Constitution (Application to Jammu and Kashmir) Order, 2019. It shall come into force at once, and shall thereupon supersede the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time," stated the notification on Monday.

Thus, the language of the 2019 order makes it clear that it has virtually nullified what was there in the 1954 order -- most importantly insertion of Article 35A.

Moreover, Article 35A stemmed from Article 370. The 1954 presidential order said: "In exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the concurrence of the Government of the State of Jammu and Kashmir, is pleased to make the following Order…"

As Article 370 itself has been scrapped, the edifice of the authority to grant legitimacy to 1954 presidential order and consequently Article 35A seems to have been done away with.

Additionally, Article 35A uses the term 'State'. But if the NDA government has its way, J&K will not remain a state after passage of the state re-organisation bill, which again would mean that Article 35A will not have any applicability.