It is being said that the Government of India can remove special status for Kashmir, between the continuous stirring in Jammu and Kashmir.
Former India Finance Minister Arun Jaitley attacked former prime minister Jawaharlal Nehru on Kashmir.
Jaitley had said that Article 35A of Jammu and Kashmir is "constitutionally defective" and there is a problem in the way of economic development of the state.
Arun Jaitley wrote a blog titled 'Law and Jammu-Kashmir'. He wrote in the blog that a seven-decade history of Jammu and Kashmir is facing many questions with changing India.
Jaitley had written that most Indians believe that Nehru's adopted way in the Kashmir case was "historic mistake".
Jaitley asked, "Should our policies be guided by the faulty viewpoint or move away from the leak according to the ground reality?
Jaitley also wrote about the background of Article 35A applicable in Jammu and Kashmir. According to Article 35A, a person outside Jammu and Kashmir can not have any property in the state.
Jaitley had written in his blog that this article was "secretly" included in the Constitution through a notification issued in the year 1954 by the President.
Jaitley had said that Article 35A was never a part of the template of the fundamental constitution created by the Constituent Assembly. He had said that it was not passed in accordance with Article 368 of the Constitution, it was passed by two-thirds majority in both the Houses of Parliament.
The Modi Government is looking at an attacker on Article 35-A in Kashmir but it has a historical background.
Many petitions have been filed against Article 35-A in the Supreme Court. An NGO named 'We the Citizens' has also filed a petition.
J & K has got privilege from 35-A. No person outside Jammu and Kashmir can buy real estate here. Besides this, an outsider can marry the woman here, even then she can not have her right over the property.
Article 35-A was added to the Indian Constitution by the order of President Rajendra Prasad in 1954. This was done after the agreement between Maharaja Hari Singh and the Indian Government of Kashmir. By incorporating this article into the Constitution, the Kashmiris got this privilege that the outsiders can not be here.
The President gave this order under Article 370 (1) (d) of the Constitution. Under this, the President can take a decision regarding certain 'exceptions and changes' in the interest of Jammu and Kashmir. That is why the article 35-A was later added so that the Indian government treated the permanent resident in accordance with Jammu and Kashmir.
Merger of Jammu and Kashmir into India
'The Instrument of Execution' is considered a legal document in the merger of Jammu and Kashmir in India. After the announcement of the Partition of India on June 3, 1947, the states ruled by the kings and kingdoms were deciding whom to go with.
At that time, Jammu and Kashmir was in dilemma. Jammu and Kashmir Maharaj Hari Singh signed 'Standstill Agreement' with India and Pakistan on August 12, 1947. Standstill Agreement means Maharaja Hari Singh has decided that Jammu and Kashmir will remain independent. He will not be involved in India nor in Pakistan.
Pakistan did not respect it even after accepting this agreement and it attacked Kashmir. To avoid being forced to join Pakistan, Maharaja Hari Singh signed the 'Instrument of Execution' on October 26, 1947.
In the Instrument of Accession, it has been said that Jammu and Kashmir will be a part of India but it will get special autonomy. It is clearly stated that the Indian government can only make rules for defense, foreign affairs and media for Jammu and Kashmir.
Article 35-A came in 1954 after the order of the President. This was the sequel to the 'Instrument of Execution'. Due to 'Instrument of Execution', the Government of India got very limited rights for any kind of interference in Jammu and Kashmir.
Supreme Court's senior lawyer Prashant Bhushan said in an article written in The Hindu that for this reason Article 370 was brought. Under Article 370, Jammu and Kashmir was given special status. It states that the Parliament has limited rights for Jammu and Kashmir to form a statutory list and a concurrent list.
Land, right to land and settlement in the state are the most important. Land is a subject of Jammu and Kashmir. Prashant Bhushan says that Article 35-A is the only way for the Indian government to make conditional interference in Jammu and Kashmir. At the same time, it is also very clear that the general powers of Parliament and the Constitution will not be applicable in Jammu and Kashmir.
In Himachal Pradesh and Uttarakhand, there is a law that no outsourcing can buy limited land. Prashant Bhushan believes that these laws of Himachal and Uttarakhand are totally unconstitutional and the fundamental right to settle in any part of the country is a crime.
Prashant Bhushan has said in his article that since Jammu and Kashmir came to this condition in India, it can not be challenged by pointing out the fundamental rights and basic structure of the Constitution. He believes that it is part of the Constitution of India that India has limited access to Jammu and Kashmir.
Prashant Bhushan believes that Jammu and Kashmir has never merged completely in India and it is a semi-sovereign state. This is not like the rest of India. Article 35-A adheres to the Instrument of Execution and guarantees that the autonomy of Jammu and Kashmir will not be disrupted.
Article 35-A was misconstrued in the constitution?
Many believe that the way in which Article 35-A was added to the Constitution was not under process. Bhupendra Yadav, the BJP leader and lawyer, feels the same. The constitution was not amended by passing legislation from Parliament to add Article 35-A to the Constitution.
According to Article 368 (i) of the Constitution, the right to amend the Constitution is only to the Parliament. So was this order of President Rajendra Prasad out of the jurisdiction? Bhupendra Yadav believes that the President's decision was disputed.
So can Article 35-A be abrogated because the Nehru government ignored the rights of Parliament? In 1961, the Bench of five judges discussed the rights of the President under Article 370 in the case of Puranlal Lakhanpal v. India.
The court was assessed that the President could make changes in the provisions of Article 370. However, there is nothing clear in this judgment that the President can do so by bypassing Parliament. This question still remains.
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