Article 35 A accords special rights and privileges to J&K natives and empowers its legislature to frame any law without attracting a challenge on grounds of violating right to equality from other states or any other rights under Constitution.
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.
