Finance Minister and senior BJP leader Arun Jaitley on Thursday questioned the constitutional validity of Article 35A, saying it is “constitutionally vulnerable” and has been “hurting” the interests of common people by blocking the economic development of Jammu and Kashmir.
The BJP-led NDA government has so far refrained from taking a position on the issue of Article 35A, which restricts non-permanent residents from buying property in J&K.
Maintaining that Article 35A was “surreptitiously included by a Presidential notification”, Jaitley wrote in a blog: “Article 35A, which is constitutionally vulnerable, is used as a political shield by many but it hurt the common citizen of the State the most. It denied them a booming economy, economic activity and jobs.” Follow more election news here.
Bringing up the issue of those who had to leave Jammu and Kashmir, Jaitley said the Article “gives the right to the State Government to discriminate between two State citizens living in the State on the basis of declaring some as permanent residents while leaving out the others”, and “between permanent residents of the State and all other Indian citizens living elsewhere”.
He said the seven-decade history of the state confronts changing India with several questions. “Was the Nehruvian course, which the state had embarked a historical blunder or was it the correct course to follow? Most Indians today believe that it is the former… Does our policy today have to be guided by that erroneous vision or an out of box thinking which is in consonance with ground reality?”
According to Jaitley, the state does not have adequate financial resources and its ability to raise resources has been crippled by the Article. “Article 35A, which is constitutionally vulnerable, is used as a political shield by many but it hurt the common citizen of the State the most. It denied them a booming economy, economic activity and jobs,” he wrote.
The minister also criticised mainstream parties in the state for the confusion. Alleging that the three mainstream parties — “two of them are based out of Srinagar and one in New Delhi” — referring to NC, PDP and the Congress, Jaitley said: “Regrettably, they let down the people of the State. The two major mainstream parties, even when they condemned terrorism, it was always with ‘ifs’ and ‘buts’… It is for this reason that their own space has shrunk. This is the country’s disappointment with them.”
He said the present government has decided that the rule of law in the interest of the people of Kashmir and the larger interest of India must equally apply to Jammu and Kashmir. He also listed development works taken up in the state.
The Supreme Court is seized of a clutch of five petitions challenging the provision which was incorporated in the Constitution in 1954 by an order of President Rajendra Prasad on the advice of the Nehru Cabinet.
The main petition, filed by Delhi-based NGO ‘We the Citizens’, has been pending since 2014. Subsequently, four more petitions challenging the proviso were filed, which were then clubbed with the main one. The Centre has not filed a counter-affidavit in the matter, saying it had consciously decided not to do so as the matters raised are “pure questions of law”.
The matter came up for hearing in August 2018, when the court put off the hearing to the second week of January 2019 after both the central government and Centre-ruled Jammu and Kashmir cited law and order issues and prayed that the proceedings be deferred till the local body polls were over in December 2018.
In February this year, J&K standing counsel Advocate Shoeb Alam submitted a note to the SC Registry intimating that the state will be seeking adjournment as there is no elected government in J&K now and it is under President’s rule.