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Govt can bring ordinance to scrap Article 35A’

February 24, 2019 05:13 AM


Govt can bring ordinance to scrap Article 35A’

New Delhi:

Although there is no hurdle in the Centre’s way in bringing an ordinance to scrap Article 35A that empowers the J&K legislature to define “permanent residents” of the state and provide them special rights, such a decision may face questions on the timing in view of the coming general elections and the volatile situation in the state after the Pulwama attack, opine some legal experts.

Former Lok Sabha secretary general Subhash C Kashyap said, “Article 35A was not part of the original Constitution. It was not passed by the Constituent Assembly. It was made a part by a presidential order. So, in my opinion, there is no need of any ordinance to scrap it and it can be done through presidential order in concurrence with the J & K government. Since there is no elected government now in the state, the presidential order could be passed with concurrence of the governor. Legally, there is no hurdle, but it is more a political decision.”

Senior advocate Dushyant Dave said the Centre may plan to take such a decision on the premise that “judiciary is not as independent and powerful as it used to be”, but it would not stand the test of judicial scrutiny.

“The government has the power to bring ordinance even if it is nonsensical. The Constitution can be amended only in a prescribed manner under Article 368. So there is double protection to the existing provisions. Assuming Article 35A can be amended or deleted, which I seriously doubt, the ordinance will be absolutely unconstitutional route to do so. Also the Jammu and Kashmir assembly is not alive, so it would be a wrong move by the Centre. The government’s move smacks of politics and is aimed at wooing Hindu voters,” Dave said.

Senior advocates Amrendra Sharan and Ajit Sinha also agreed that the Centre is empowered to bring ordinance but questioned the propriety of such a move on an important matter.

“In my opinion it can be done but propriety of taking ordinance route on the issue is questionable. The Article has been part of the Constitution for such a long period then why bring ordinance now. It is not part of the Fundamental Rights, so it can be amended by executive decision and but ultimately validity of any such decision has to be decided by the court,” Sharan said.

“The ordinance would have far reaching consequences and bringing it now is debatable and questionable. There should be some emergency to justify taking the ordinance route and the government has to justify it when it comes under the scanner of judiciary,” Sinha said. Advocate Prashant Bhushan and ex-solicitor general Mohan Parasaran said it would be illegal on the part of the Centre to bring ordinance to scrap a Constitutional provision

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