It’s well grounded: Article 35-A of constitution of India in a broader perspective

Greater Kashmir

It’s well grounded

Article 35-A of constitution of India in a broader perspective

Adv. Muzaffar Paray

Srinagar,

Aug 18 2018

There is much hue and cry in respect of Article 35-A and its constitutional validity has been challenged before the Supreme Court of India and concomitantly various intervention applications have been filed in this highest judicial tribunal of country. The main ground taken by the petitioner is that inter alia other grounds it has been urged in the petition filed before Supreme Court of India that 35-A of the Indian constitution which empowers the legislature of Jammu and Kashmir state to define permanent residents of the state and provides special rights and privileges to those permanent residents. It is worthwhile to mention here that the incorporation of said article (application to Jammu and Kashmir) order 1954 issued by then Hon’ble president of India Dr. Rajendera Prasad under article 370 with the advice of union Government headed by late Pandit Jawhar Lal Nehru. Needless to say it was issued subsequent to 1952 Delhi agreement reached between late Pandit Jawhar Lal Nehru then Prime Minister of India and late Sheikh Mohammad Abdullah then Prime Minister of Jammu and Kashmir. The main purpose of this article was enshrined in the statement of late Jawhar Lal Nehru in the Lok Saba on Delhi agreement to elucidate the moot points in respect of incorporation of article 35-A in the constitution of India. The genesis of this article can be traced way back 1925 when the Dogra rulers ensured that nobody outside the state can purchase the land in the state of Jammu and Kashmir. Wven it is worthwhile to mention here that Dogra rulers made Urdu official language of the state.

Anyway Pandith Jawhar Lal Nehru elucidated reasons during his speech about incorporation of article 35-A in constitution by saying that our friends from Kashmir were very apprehensive about one or two matters. In the maharajas time there had been laws preventing any outsider from acquiring or holding land in Kashmir he further said that maharaja of Kashmir was very much afraid of a large number of English men coming and settling down there because the climate is delectable. So although most of the rights were taken away from maharaja under British rule. The Maharaja stuck to this that no body from outside would acquire land there and that continues. He further said the present Government of Kashmir is very anxious to preserve that right because they are afraid as has been said above. Late Jawhar Lal Nehru further detailed out that I think that Kashmiris are rightly afraid and would be overrun by people whose sole qualification might be the possession of too much money and nothing else who might buy up and get the delectable places, so we agreed and note the same fear of Kashmiris. So the State legislature shall have the power to define and regulate rights and privileges of the permanent residents of the state more especially in regard to the acquisition of immovable property, appointments to services and like matters till than the existing law should apply.

In response to misguided people who say that Article 370 does not anywhere confer on the president legislative or executive powers, the famous constitutional expert Mr. A.G Noorani said that all the legal arguments against the article are groundless and are raised with communal minded majoritarian intensions. He further says that it is an appreciable dictum that laws have their own universe; they operate in matter and not in vacuum. These laws are located in time and space. In the state of Jammu and Kashmir the immovable property of state subject cannot be permitted to be transferred to non-state subject; this legal and constitutional protection is inherent in the state subject of state of Jammu and Kashmir and this fundamental and basic inherent right cannot be taken away in view of peculiar and special constitutional position occupied by Jammu and Kashmir. Assuming for a while if the Hon’ble supreme court decided in favour of validity of constitution application orders then such judgments shall be applicable to all because of unconstitutionality and state of Jammu and Kashmir be relegated to the position as was existing prior to signing of instrument of accession.