The government of India’s stand on Article 35-A which grants J&K legislative powers to define state’s permanent residents has become “uncertain” and the state government needs to be “extra cautious” while handling the matter in the Supreme Court, legal experts cautioned on Thursday. The ‘warning’ comes days after New Delhi didn’t file an affidavit on the matter in the court and instead sought a “larger debate” on the “very sensitive” issue.
“The state government has to be very cautious and very careful now because the stand of the government of India has become uncertain,” said noted lawyer, Zaffar Shah.
While J&K has filed affidavit in the court demanding dismissal of the petition filed by a little known NGO “we the citizens”, the government of India has said it wasn’t keen on filing an affidavit in the case, thus keeping its options open before the court without committing itself to any position. The NGO has sought scrapping of Article 35A which defines special privileges enjoyed by permanent residents in matters related to employment, acquisition of immovable property, settlements and scholarships.
The Article was extended to J&K through the ‘Constitution (Application to Jammu and Kashmir) Order issued by President Rajendra Prasad on May 14, 1954. It was specifically devised to grant protection to state subject laws that had already been defined under the Maharaja’s rule and notified in 1927 and 1932.
The BJP, RSS and their affiliate groups are opposed to Article 35A as it bars non-J&K subjects to settle and buy property in the state.
“If the constitutional provision (Article 35A) is scrapped, J&K will lose all the special privileges including the state subject law, right to property, right to employment, and right to settlement. These privileges will no longer be then restricted to permanent residents of the state as is the position today, but will be availed by the citizens of India as well,” explained Shah. “Jammu and Kashmir will thus become like any other state where people from any part of India will have all these rights.”
This is not for the first time that Article 35A has been challenged in the Supreme Court. Similar petitions have been dismissed by the court thrice in 1956, 1961 and 1970, while upholding the powers of the President to pass constitutional orders.
Former advocate general MI Qadri said the government of India’s move to not file an affidavit “implies that they are accepting the petitioner’s versions”.
“The law is settled that if you don’t rebut the allegations and contentions of a litigant, it is deemed to have been accepted and by that view we can conclude that the government of India’s latest stand is on the similar lines,” said Qadri, adding that New Delhi’s silence has put state government in the dock.
On its part the PDP-led coalition government has taken its stand in its counter-affidavit filed before the apex court. “We have taken the stand that the State has powers under Article 370 (1) (d) to apply Constitution of India to Jammu and Kashmir with exceptions and modifications and in keeping with Article 35 A,” advocate general Jehangir Iqbal Ganai had told Kashmir Post on July 17.
The opposition National Conference however said until the government of India decides to defend the Article 35A, the state government’s stand in the Supreme Court wouldn’t help since the Article was part of Constitution of India.
“The Centre has taken a political decision to maintain ambiguity and it has now become very clear that there is a serious effort to weaken Article 370 and abrogate 35A,” said party chief spokesman Junaid Mattu.
PDP legislator Firdous Tak said the decision of the Supreme Court to refer the petition to the larger bench was purely a legal matter. “Even then the Center has the option to seek dismissal of the petition and we are expecting the union government to act on the same lines because both the PDP and the BJP are on the same page with regard to special status of J&K and have committed to it in the agenda of alliance,” said Tak
Zaffar Shah however termed the PDP-BJP coalition as “double edged weapon” with PDP seeking dismissal of the petition while BJP supporting that it should be allowed.
“This is where the paradox lies in the coalition,” said Shah.
