Whether the Article 370 and 35A Affects the basic structure of Koshinda

Constitution or not?
The respondent contended that Article 370 and 35A does not affect the basic structure of
koshinda constitution.
Article 370 was included in the constitution as a special provision to care of the exceptional
state affairs that existed in the State of K and L at the time of accession of Union of Koshinda
Article 370 has been described as ‘temporary provision’ in the Constitution of Koshinda. The
temporary nature of this Article arises merely because the power to finalise the constitutional
relationship between the State and Union of India has been specifically vested in the K and L
Constituent Assembly. The Constitution of India clearly envisaged the convening of
Constitutional Assembly for K and L State and also provides that whatever modification,
amendments or exceptions that might become necessary either to Article 370 of Koshinda
Constitution or to any other Article in the Constitution of India in their application to K and
L State were subject to the decision of the assembly. Therefore, the temporary provision does
not mean that the Article is capable of being abrogated, modified or replaced unilaterally1.
Article 370 of the Constitution of India is a special provision for amending the constitution in
its application to the State of Jammu and Kashmir, Article 368 does not curtail the power of
president under article 370 of Indian constitution2.This means that Article 368 shall be
applicable to State of Jammu and Kashmir as in the rest of India, but the amendment made to
the Constitution of India under Article 368 would be applicable to J and K only with
concurrence of the State Government, followed by an order of President made under Article
370 of Indian constitution3
This article along with Article 35A of Koshinda Constitution, defined that the K and L states
resident live under a separate set of laws, including those related to citizenship, ownership of
property and fundamental rights, as compared to other resident of the other koshinda states.
Article 35A was introduced through presidential order called the constitution (application to
the state of k and L)order 1954, and absorbed into the state constitution of k and l, adopted by
exercising the power conferred by the clause (1) of the article of the koshinda constitution,
with the concurrence of the government of the state of k and l.
Article 35A of Koshinda Constitution decide the permanent residence of the state and grant
them special rights and privileges in state public sector jobs, acquisition of property within
the state, scholarship and other public aid and welfare programs.
Koshinda has certain basic features that cannot be changed or destroyed through amendments
by the parliament. Thus, it gives an extra power to court to declare any amendment or any act
enacted by parliament unconstitutional.

1
Durga Das Basu, commentary on the Constitution of India, 8TH edition 2012, page no. 11382, paragraph 1
2
Sampath v. State of J. &K., AIR 1970 SC 118 (1125)
3
Durga Das Basu, commentary on the Constitution of India, 8TH edition 2012, page no. 11413, paragraph 6
It is important to identify the basic structure of constitution of koshinda that cannot be
amended under Article 368. Sikri CJ mentioned following as the “basic foundation and
structure” of the constitution of India4
1) Supremacy of the constitution
2) Separation of powers between the legislature, the executive and the judiciary
3) Republican and democratic form of government
4) Secular character of the constitution
5) Federal character of the constitution
6) The dignity of individual secured by the various fundamental rights and the mandate
to build a welfare state contained in the directive principles
7) The unity and integrity of the nation
8) Parliamentary system
Article 3 of the constitution of the K and L stated that the State of K and L shall be the
integral part of the of the union of koshinda. The state of k and L agree to became the part of
Koshinda with some conditions that to give a large degree of autonomy to the State of K and
L and surrendered three key subjects to parliament- defence, communications, external affairs
and ancillary areas.
Article 5 of State J&K stated that the executive and legislative power of the state extend to all
matter except those with respect to which parliament has the power to make laws for the state
under the provisions of the Constitution of Koshinda
The autonomy of the State K and L has been enshrined and retained through the provisions
contained under Article 370 of the Constitution of Koshinda. It accords special status to the
state of K and L and acts like a bridge between the Koshinda Constitution and Constitution of
K and L.

The provisions of part 3 of the Constitution of India came into force in the territory of Jammu
and Kashmir not with effect from 26-1-50 but with effect from 14-5-54. It follows that the
Fundamental Rights shall have no retrospective effect so as to affect rights and liabilities
accrued before the date5.
Article 35A does not affects the basic structure of Koshindian Constitution, as it does not
violate:

4
Kesavananda Bharti Srpadagalvaru v State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225: (1974) 1 SCC (JI.) 3
5
Magher v. Secy., AIR 1960 SC 1
 1. Article 14 of Indian Constitution -right to equality
2. Article 15 of Indian Constitution- prohibition of discrimination on the on grounds of
religion, race, caste, sex or place of birth
3. Article 19(1)(e) of Indian Constitution – to reside and settle in any part of the
terriotory of India
4. Article 16 of Indian Constitution- equality for opportunity in matter of employment.
5. Article 21 of Indian Constitution -protection of life and personal liberty
1) Article 14 of Indian Constitution states about the equality before law that is the
state shall not deny any person equality before the law or the equal protection of
laws within the territory of koshinda.
Article 14 is the basic structure of the Indian Constitution and hence it cannot be
destroyed even by an amendment of the constitution under Article 368 of the
constitution6.
Under Article 35 of Koshinda Constitution certain benefits has been given to the
permanent resident so that the wealthy from outside state of K and L do not exploit
the state resources, including by purchasing land, to their own benefit. Men and
women are equal in all aspects except when the woman married to an outsider, she is
no further a permanent resident. It is not a discriminatory provision as it is aimed at
preserving the character, culture and demography of the State of K and L.
Any other person who is not a permanent reside is not allowed to established any big
or small industry because the reason that they create pollution and others workers come from
other country to work in these companies that is not good for the people of State of K and L.
It is important for them to preserve the character, culture and demography of State of K and
L.
When the President has been given the power to except or modify any provision of the
Constitution in so far as the State of Jammu and Kashmir is concerned, the court cannot
compel that the same principle should be applied to any other state and argument of
‘discrimination’ will have no application. Discrimination is prohibited by Article 14 of the
constitution, but the same cannot be applied to nullify a discrimination in favour of Jammu
and Kashmir since it recognised by the Constitution itself7.

2) Article 15 of Indian Constitution prohibits on the discrimination on the ground of

religion, sex, race, caste or place of birth.

6
Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 229: (1975) 3 SCC 34
7
Maharshi Avadudh v. State, AIR 1991 Ali 52
 Article 35A of Koshinda Constitution differentiate between the permanent residence
and non- permanent residence. This article is not creating any discrimination
regarding religion, sex, race, caste or place of birth. In chapter 3 of the Indian
constitution citizenship is defined, that is who will be the citizens of India and what
are there rights, so to preserve the character, culture, religion and unity of koshinda,
the union of koshinda differentiated between the citizens and non-citizens. Same as
with Article 35A of the Koshinda Constitution it is basically made to preserve the
character, culture and demography of the State of k and L.
3) Article 16 of Indian Constitution states that there shall be equality of opportunity
for all citizens in matters relating to employment or appointment to any office
under the state.
All the clause of Article 16 of Indian Constitution, excepting cl. (3) will extend to
Jammu and Kashmir. The result will be that parliament shall have no power to
make any law under [cl. (3)] in relation to that State of Jammu and Kashmir,
requiring residence with in the territory as a condition of any employment in that
State of Jammu and Kashmir. But the State of Jammu and Kashmir is empowered
to provide for special treatment of the ‘permanent residence’ of the State of
Jammu and Kashmir, in this respect8.
4) Article 19(1)(e) of Indian Constitution guarantees everyone the right to reside and
settle in any part of Indian.
In 1927 when the Homas (community) from the State of K and L approached
Maharaja Harjinder Singh fearing the arrival of people from the neighbor
provinces will lead to their control in government services. This fear lead to the
issuance of a separate notification by the Maharaja in 1927 and 1932 which
defined the state subjects and granted them the right to government office and the
right to land and ownership, which are not available to non-subjects following
the accession of the state of K and L to the koshinda union on 26 oct 1947, the
maharaja ceded control over defence, external affairs and communications to the
government of koshinda.
Now the main point is that the State of K and L is now the integral part of the
union of koshinda because of the agreement made between the king Maharaja
Harjinder and union of Koshinda. The state of K and L would be independent if
the neighbor provinces do not attack on it. They are agreed on all the terms and
conditions of the Maharaja Harjinder that’s why the instrument of accession is
signed.
So, there is no question of basic structure. The people of Koshinda are bound to
follow the Article 35A of Koshinda Constitution. if they don’t there is a breach of
contract that is held between union of Koshinda and State of K and L.

8
Durga Das Basu, commentary on the Constitution of India, 8TH edition 1012, page no. 11390, footnote
 Where prostitute, under the Suppression of Immoral Traffic in Women and Girls
act 1956, was ordered to remove herself from the limits of busy city or the
restriction was placed on her movement and residence, it was held to be
reasonable restrictions9.
The prostitute are ordered, not to reside in the busy city because of some health
issues and same in the case of non-permanent reside that is they are not allowed
to buy any property in the State of J and K. because that is not good for their
culture and it is important to preserve their dominance in the state of K and L by
making some restrictions.
The big doctor does not go in the State of K and L because they don’t have right
to reside. But the main question is that what should be the paramount
consideration of the doctor to work for the welfare of society or to reside where
they have right to buy a property and permanently settle there.
5) Article 21 of Indian Constitution lays down that no person shall be deprived of his
life and personal liberty except according the procedure established by law.
Article 21 of Indian Constitution guarantees enjoyment of life by all citizens of this
country with dignity, viewing this human right in terms of human development, self-
determination of gender is an integral part of personal autonomy and self-expression and
falls within the realm of personal liberty guaranted under Article 2110.
Article 35A of koshinda constitution does not restrict any individual, not to enjoy their life
with dignity. It is not important to an individual to buy a house and live in the State of K and
L but the noticeable thing is that this article does not restrict any one to live in the State of K
& L just they impose some reasonable restriction to preserve the character, culture and
demography of State of K and L.
A most prominent feature of Constitution of Jammu and Kashmir, as distinguish from the rest
of India, is the provision for special treatment of the ‘permanent residents’ of Jammu and
Kashmir. The permanent residents are such person as are declared to be so by an existing law
of the State of Jammu and Kashmir or by any future law enacted by the legislation of the
State of Jammu and Kashmir. And any such law may either confer special rights or privileges
or impose restrictions upon permanent residents with respect to any or all the following
matters-
(i) Employment under the state government
(ii) Acquisition of immovable property in the state
(iii) Settlement in the state
(iv) Right to scholarship and such other forms of aid as the state government may
provide

9
State of Uttar Pradesh v Kaushaliya and Ors, (1964) 4 SCR 256: AIR 1964 SC 416
10
National Legal Services Authority v Union of India, (2014) 5 SCC 438: AIR 2014 SC 1863: 2014 (5) SCALE 1:
 Such legislation shall be valid notwithstanding that it is inconsistent with
fundamental rights conferred by the constitution upon the other citizens of India.
[ e.g., by Article 15(1), 16(1), 19(1)(e), (f)]11.
But if Article 370 and 35A of Koshindian Constitution revoked it will affect the basic
structure of Koshinda Constitution that is Federalism.
The preamble is an integral part of the constitution and democratic form of government,
federal structure, unity and integrity of the nation, secularism, socialism, social justice and
judicial review are basic structure of constitution of India12.
The constitution is federal in character and not unitary. In a federal structure, the existence of
both the union and the states is indispensable. A federal State derives its existence from the
Constitution. Therefore, such federal structure is the basic structure of the constitution13.
Federalism is the device by which plural qualities of a society are articulated and protected .it
is devised to secure both regional autonomy and national unity. It also defines the
relationship between the central government at the national level and its constituent units at
the reginal state or local level.
Koshinda has adopted federalism to actualize and uphold the values of national unity, cultural
diversity, democracy, regional autonomy and rapid socio-economic transformation through
collective efforts.
Unity in diversity only possible by federalism.

11
Bachan v. State of J & K, AIR 1987 SC 1168
12
S.R. Bommai v. Union of India
13
Kesavananda Bharti Srpadagalvaru v State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225: (1974) 1 SCC (JI.) 3