The Jammu and Kashmir government has invoked Article 370 of the Constitution of India and several judgments of the Supreme Court to defend Article 35 A of the Constitution which grants special rights and privileges to the state subjects.
Taking stand on the issue, the government has conveyed to the Union Home Ministry that insertion of Article 35 A by the President is within his powers under Article 370 of the Constitution of India.
Article 35 A was applied to J&K through the ‘Constitution (Application to Jammu and Kashmir) Order 1954’ issued by President Rajendra Prasad on May 14, 1954. It was devised to grant protection to state subject laws that had already been defined during the Maharaja’s rule and notified in 1927 and 1932.
A little-known group—backed by right-wing organizations—has filed a petition in the Supreme Court, seeking scrapping of the Article. After receiving a notice from the Apex Court registry, the Union Home Ministry had sought ‘views’ of the J&K government on the petition. Following the directions, the State Law department in consultation with the Advocate General’s office prepared a detailed response on the matter which was submitted to the MHA a few days back.
The case is listed before the Apex Court registry on November 3.
According to sources, the J&K government, in its response, has conveyed to the Union Ministry that the President has power to alter, amend, vary or add a provision to the Constitution of India for its application to the state of J&K vide presidential order issued under Article 370.
The State government has also stated that powers of the President to add any provision in the Constitution of India for its application to J&K has already been settled by the Supreme Court in a number of cases.
In its reply, according to sources, the state government has also conveyed to the Ministry that Article 35A is not the only provision which has been inserted in the Constitution of India for its application to J&K.
“Various other provisions of the Constitution of India applicable to the State don’t exist in original constitution as applicable to the rest of India,” the State, according to sources, has told the Ministry.
The writ petition is widely seen as a move by right-wing groups to make a dent in special position of the state and change demography of the State.
While separatists and mainstream groups including NC and Congress have warned of serious ramifications if any attempt was made to weaken Article 35A, the BJP had described the Article as the biggest “constitutional fraud”.
The Kashmir Centre for Social and Development Studies (KCSDS), a civil society , has called for peoples movement to defend the Article.
ARTICLE 35 A:
Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State defining the classes of persons who are, or shall be permanent residents of the State of Jammu and Kashmir; or conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects-employment under the State Government; acquisition of immovable property in the State; settlement in the State; or 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.
