Implying that Article 35 A has become a permanent feature of the Indian Constitution, the Jammu and Kashmir government on Thursday told the Supreme Court that the 1954-Presidenial Order granting special rights to permanent residents of the state has been recognised, accepted and acted upon since its enactment and cannot be challenged now.
Article 35A, which was added to the Constitution by a Presidential Order in 1954, accords special rights and privileges to the natives of J&K, and empower its legislature to frame any law without attracting a challenge on grounds of violating right to equality of people from other states or any other right under the Indian Constitution.
Submitting its affidavit in response to a PIL that challenged the constitutional validity of Article 35A, the state government asserted that the President has the power to incorporate a new provision in the Constitution by way of an Order, as was done for J&K.
The PIL, filed by a Delhi-based NGO ‘We the citizens’, has sought Article 35A to be declared unconstitutional, contending the President could not have amended the Constitution by the 1954-order and it was supposed to be a temporary provision. It said the J&K government, under the guise of Article 35A and Article 370 which grants special autonomous status to the state, has been discriminating against non-residents who are debarred from buying properties, getting a government job or voting in the local elections.
But the state’s affidavit, settled by eminent jurist Fali S Nariman said “the instant petition seeks to upset settled law, accepted and complied with by all” , besides the fact that the challenge to the Presidential Order has come after more than 60 years. “After this length of time when the provisions enacted in Article 35A of the Constitution have been continuously acted upon and treated as valid, the same ought not to be permitted to be challenged,” it added.
Responding to a notice issued by the court more than a year ago, the affidavit denied that the President has no power to amend the Constitution by incorporating a new Article while also disputing the NGO’s contention that the Constitution can be amended only under Article 368, which confers the power on the Parliament and not exclusively on the President to make amendments. It claimed Article 368 will not hold the field in respect of matters covered by Article 370 under which the state has a unique status and it will only be by way of a Presidential Order that an amendment under Article 368 can apply to J&K.
The J&K government said that Article 35A does not infringe any fundamental right of citizens, and pointed out that Article 370 has elucidated that provisions of the Indian Constitution will not be a limitation on the laws of this state. The apex court, it added, has already ruled in two cases in 1960s that the J&K government can make exclusive provisions have been upheld.
The affidavit has been filed after deliberation at the highest level. According to the sources, the government’s previous draft was objected to by the BJP, following which it was significantly improved and controversial references regarding Maharaja Hari Singh and the Instrument of Accession were dropped. The initial draft had stated that J&K’s “accession” to India was “limited in scope and not absolute”. The Central government is still to file its reply on the matter.