J&K: Legal Experts Say Article 35A Can Go, Point Out Why The Article Is A Nullity

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Article 35A has been debatable part of the Constitution among the people. There are those who favour the abrogation of the Article, with some even petitioning the Supreme Court challenging its validity, and there are politicians from the state who insist that the Article must prevail at all costs and Jammu and Kashmir must continue to retain its special identity through the special rights bestowed by 35A.

Written By Koushik Narayanan | Mumbai | Updated On:

Article 35A has been debatable part of the Constitution among the people. There are those who favour the abrogation of the Article, with some even petitioning the Supreme Court challenging its validity, and there are politicians from the state who insist that the Article must prevail at all costs and Jammu and Kashmir must continue to retain its special identity through the special rights bestowed by 35A.

Advocate Mahesh Jethmalani says Article 35A can go

Senior advocate Mahesh Jethmalani, who appears for the cases challenging Article 35A at the Supreme Court, said that the amendment was passed and came into effect by a Presidential order while only the Parliament was empowered to amend the constitution and hence said that the Article 35A was a nullity. 

Senior advocate Mahesh Jethmalani, who appears in the cases challenging Article 35A has said, "the main ground for striking it down is that only Parliament can amend the Constitution and it cant be amended by the way of a Presidential order. Article 35A was brought into effect by a Presidential order and hence is a void, a nullity". 

"Article 35A itself says that no law in Jammu and Kashmir, which pertains to some subjects like the acquisition of immovable properties, can be challenged on the grounds that it has violated fundamental rights and that itself, in much as the article, says that you cannot challenge the on the grounds of violating fundamental rights including the right of Judicial review or move to Supreme Court", he said. 

Mahesh Jethmalani said that Article 35A  can be removed or amended by the Parliament, as it previously came into effect under the President's order, and is however a nullity. He said that it will require a declaration of the Supreme Court 

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"Article 370 and is a temporary issue will go someday for the sake of national integration and integrating Jammu and Kashmir with the rest of the Union of India", said the senior advocate. 

Former Additional Solicitor General Vikas Singh on Article 35A

Former Additional Solicitor General Vikas Singh said that the Parliament does not need to assemble to scrap 35 A. He said that it can be done just by a notification because it was inserted by a Presidential notification and that the cabinet could suggest to the President to recall the notification. 

On Article 370, he said, " Article 370 cannot be amended. It is the mother article and will need a two-third majority. If the boundary of the state needs to be changed, then they will require a simple majority." 

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