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Article 35A: Biggest constitutional fraud in the history of India

Discussion in 'National Politics' started by Levina, Oct 30, 2017.

  1. Levina

    Levina Colonel on stilettos SENIOR MEMBER

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    Article 35A : The Biggest Constitutional Fraud in the history of India

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    If you ask an ordinary man on the street, specific details about our constitution, he may not be aware of the specific aspects. But it will be a bigger surprise to know that a person who was the Solicitor General of India fumbled when she was asked a simple question by a law student.

    “Does the President of India have the power to amend or insert any article into the constitution without taking the Parliament into confidence”?

    The Ex Solicitor General replied candidly, yes, the President has the power to amend the constitution ‘but not without the Parliament’s consent.’ The law student continued: Mam, but an article 35A has been inserted in Indian constitution without the consent of Parliament. Much to his surprise, Ex Solicitor General said, I am not aware about this but if it has happened, we will look into it.

    If this is the case with Constitutional experts in our legal fraternity, nothing more can be expected from the students of law who are studying law to socially engineer the society with their legal proficiency on matters concerning statutory rights of citizen.

    But all that is set to change as the Jammu Kashmir Study Centre, a think tank close to RSS is set to challenge what is considered one of the most brazen violations of Indian Constitution by the then Congress government which was headed by Prime Minister Jawaharlal Nehru. Article 35A was incorporated in Constitution of India through a Presidential Order, on May 14, 1954. Termed as Constitution (Application to Jammu and Kashmir) Order, 1954, it is this article not article 370 which legitimizes any preferential treatment given to residents of Jammu and Kashmir over other citizens by J&K state assembly.

    Article 35A states , “no existing law in force in state of J&K and no law hereafter enacted by the legislature of the state , conferring on permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects:

    (1) Employment under the State Government;

    (2) Acquisition of immovable property in the State;

    (3) Settlement in the State; or

    (4) Right to scholarships and such other forms of aid as the State Government may provide,

    Shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”

    It is to be noticed here that this discriminative provision is not open to challenge as inconsistent with the rights guaranteed by Part III of the Constitution of India due to operation of 1954 Order.

    Though President is invested with legislative power, but only in order to tide over an emergent situation, which may arise whilst the Houses of Parliament are not in session. Thus President cannot issue an Order, which is beyond the legislative competence of Parliament, therefore legislative power conferred on the executive by the Constitution makers was for the necessary purpose and hedged by limitations and conditions.

    Under Article 70 of the Indian Constitution , Parliament may , make such provisions as it thinks fit for the discharge of the functions of President in any contingency not provided in the constitution. But as per reply of an RTI from Ministry of Home affairs, no such provision had been made by Parliament in regard for issuance of Constitution (Application to Jammu & Kashmir) Order, 1954.

    Article 35A is acting as a hindrance in complete development of J&K, affecting every sector of State’s administration. The present situation is such that there is no faculty in Engineering colleges and Medical colleges. No professors from other states want to go and teach in Jammu and Kashmir because they cannot purchase a house for themselves there, their children cannot get admission in to professional colleges and there is no government service for his children.

    There is another instance, that of the refugees, who migrated in the state of Jammu and Kashmir in 1947 from West Pakistan and residing in the state for nearly 68 years, but are still treated as second class citizens of the state. They are considered as Indian citizens but not the citizens of the J&K. They can vote in the Lok Sabha elections but cannot vote in the State assembly elections. They cannot acquire any immovable property in the State, the right to employment under the State, right to start an industry, or even purchase a motor vehicle. Imagine that you are an Indian citizen, but you cannot buy a bike or a car in Jammu & Kashmir. The ridiculous part is that even today, a person who comes from Pakistan occupied Kashmir is given all the rights as a citizen of J&K, but not these refugees who came from West Pakistan.

    To scrap this special provision, the Jammu Kashmir Study Center has decided to approach the Supreme Court. The legal challenge to Article 35A could be the opening gambit for a bigger attack on Article 370. JKSC is of the view that is the root cause for violation of rights in J&K and was a constitutional amendment signed by the President without the knowledge of the Parliament, which has the sole authority to amend the constitution. It is a myth that Article 370 confers special status on the state of Jammu and Kashmir – it is at best a temporary provision. The irony is not lost in the fact that Article 35A was placed in Part 3 of the constitution that deals with Fundamental Rights and yet violates the right of citizens of India.

    The addition of the Article 35A by the then President, Dr Rajendra Prasad was done at the behest of Nehru. According to the Constitution, any addition or deletion of an article, amounted to an amendment of the constitution, which can be done only by Parliament as per procedure laid down under Article 368. This huge fraud was committed by Nehru by forcing the President who does not have the legislative powers, he in fact had performed the function of the Parliament. Now, the time has come to correct it.


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  2. Guynextdoor

    Guynextdoor Lt. Colonel SENIOR MEMBER

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    It doesn't matter. BJP had 0% seats in parliament those days and Congress had 90% seats. So it had the 'confidence of the parliament'
     
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  3. vstol jockey

    vstol jockey Colonel MILITARY STRATEGIST

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    This article will be repealed and struck down by SC. It has no legal basis to be included in J&K constitution bypassing Indian Parliament.
     
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  4. ghostwhowalks

    ghostwhowalks FULL MEMBER

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    is there any document evidencing that the parliament voted on it, or approved it or event post facto ratified it?
     
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  5. ghostwhowalks

    ghostwhowalks FULL MEMBER

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    it should....but whether it will remains to be seen. Of late SC judgements have left many wondering.....
     
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  6. Som Thomas

    Som Thomas 2nd Lieutant FULL MEMBER

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    The SC should void the article 35A and 370. And settle poor Hindus and new Hindu refugees ( providing them incentives)in the valley. Just like the Chinese government did ( settling Hans among Buddhist making them a minority). This should solve all the Sunni problem in Kashmir.
     
  7. ghostwhowalks

    ghostwhowalks FULL MEMBER

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    as expected, SC deferred the hearing by 3 months. Its easy to ban fire crackers on Diwali, but it takes a solid pair to face the jihadis....
     
  8. vstol jockey

    vstol jockey Colonel MILITARY STRATEGIST

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    It was not SC but the realcolors of BJP are out in the open.Govt asked for six month adjournment and got three months.
     
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  9. Guynextdoor

    Guynextdoor Lt. Colonel SENIOR MEMBER

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    Congress was parliament. So if congress passed it parliament passed it.
     
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  10. ghostwhowalks

    ghostwhowalks FULL MEMBER

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    are you sure sir? because media reports seem to suggest otherwise. Shameful if its the Govt that's dragging its feet. Then there's no diff between this govt and UPA except some improvement on internal security and on borders. I sincerely hope that's not true
     
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  11. ghostwhowalks

    ghostwhowalks FULL MEMBER

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    Please rad up constitution and parliamentary procedures. Any amendment of the constitution requires 2/3 of the Parliament to vote on it and pass it. Congress cannot do it sitting in its party HQs.

    Today AAP controls 95% of the Delhi assembly, still all bills have to be tabled and voted on. Kejri cant approve them and make them into law sitting in his residence.
     
  12. vstol jockey

    vstol jockey Colonel MILITARY STRATEGIST

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    Indian constitution was adopted in 1949 and came in to force in 1950. This article was inserted in 1954. Any law or any amendment to constitution has togo thru a system of being debated and passed in both houses followed by proclamation by President of India.
    This procedure was not followed and Presidential order directly amended the constitution. This is illegal and against the constitution of India.

    Yes, Its true. BJPis dragging its feet on this issue. They have also given an affidavit that they have no views on this issue. The real farce of BJP is out in the open.
     
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  13. Guynextdoor

    Guynextdoor Lt. Colonel SENIOR MEMBER

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    yeah but it's pointless point right? Congress dominance was so overwhelming 'debate' would have changed nothing. My own assessment is that that a 'special status' was given as a sop to the Pak occupied territories of POK so that some day when we incorporate them they don't feel ticked off. Notice that even Pak had to resort to that trick- they had to keep their territories as 'Azad Kashmir' as a sop to get their support on Indian Kashmir.
     
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  14. Guynextdoor

    Guynextdoor Lt. Colonel SENIOR MEMBER

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    This is a political question, any political party should do what is politically astute.
     
  15. vstol jockey

    vstol jockey Colonel MILITARY STRATEGIST

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    But things have changed now and no one except Pak Army wants to stay in Pakistan.
     

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