J&K wants plea challenging Article 35A dismissed

A year after the Supreme Court's notice to the Centre on a plea challenging Article 35A of the Constitution, which grants 'special status' to permanent residents of J&K and preventing rest of Indian citizens from acquiring immovable property and exercising voting rights in the state, the Union of India has failed to respond but the Jammu and Kashmir government has filed its reply seeking dismissal of the petition.

Noting that despite direction from the court, the Centre has not filed the affidavit, the registrar of the court on Thursday passed the order directing the matter to be listed before an appropriate bench for further hearing.

Filing an affidavit, the Mufti government in the state said the apex court had already dealt with the President's 1954 order which allowed only the permanent residents of J&K to buy and sale the immovable properties, getting government jobs and voting rights there and restrained others.

It submitted that since Article 370 as enacted and amended remained in the Constitution as an integral part thereof and since the presidential order of 1954 has been recognised and acted on, as valid, ever since its promulgation, and when challenged, it was rejected by the two Constitution benches of the Supreme Court and sought dismissal of the petition.

The petition was filed by 'We the citizens', a Delhi-based non-governmental organisation registered as a society, through its president Sandeep Kulkarni was first heard a year ago on August 19, 2014 by the Bench headed by Chief Justice. The court then sent notices to the Centre and J&K government.

Petitioner's counsel Varun K Sinha argued that "the state of J&K is integral part of India and therefore the citizen of J&K as well as citizen of other states of the country have got equal fundamental rights and on the ground of certain clauses/paras contained in the constitution application to J&K order 1954 are violative of Article 14 of the Constitution of India."

He also argued that although President has the power to modify/ clarify the Article 35 with regard to the state of J & K but his 1954 order was illegal saying "with the insertion of Article 35 A can only be done by the Parliament through an amendment.

"Last year when the petition was filed, the BJP, then in the Opposition in Jammu and Kashmir and vying for a mission 44 ahead of elections, had not only supported it vociferously, but also promised to annul this legal provision to make citizenship laws uniform all over country. But now that it is sharing power with the Peoples' Democratic Party (PDP), it is becoming increasingly difficult for the law department of Jammuand Kashmir government, as well as for the Central government to either support or oppose the plea.

The Article 35A that forms basis of Permanent Resident law replicated actually a state subject law promulgated by the Dogra king Maharaja Hari Singh in 1927 following a strong campaign by Kashmiri Pandits who were opposed to the hiring of civil servants from Punjab, because it had affected their representation in the Dogra administration.

The Kashmiri Pandits' agitation of the time did not affect the Muslim majority because the Dogras as a policy kept Muslims largely out of the administration. Also, the law was brought to prevent rich landlords from the erstwhile undivided Punjab to claim property and permanent resident rights after marrying Kashmiri Muslim girls. A provision was incorporated that Kashmiri girls, marrying outside the state, will forfeit their immovable property rights.

Earlier, dna had reported that Centre's concerned ministries – law and justice and ministry of home affairs – were busy gathering inputs from various agencies on the implications, as in Kashmir, both the mainstream parties – the National Conference as well as ruling People's Democratic Party – have warned the government of dire consequences on the issue. Both of them want the Central government to oppose the petition tooth-and-nail.