J&K Govt’s defense on 35A in SC: 'Settled law, accepted & complied with by all’

The Supreme Court, which is hearing the petition filed by NGO ‘We the Citizens’, referred the matter to a three-judge bench last month and set a six-week deadline for its final disposal.

MUDDASIR ALI
Srinagar, Publish Date: Aug 13 2017 12:09AM | Updated Date: Aug 13 2017 12:09AM
J&K Govt’s defense on 35A in SC: 'Settled law, accepted & complied with by all’File Photo

In its counter affidavit filed before the Supreme Court against a petition seeking scrapping of Article 35A, the J&K government has maintained that the challenge is “legally misconceived” as the petition seeks to “upset settled law, accepted and complied with by all” for past more than 60 years.

The government has invoked two judgments by separate Constitution benches of the apex court of 1962 and 1969 which have upheld the legality of Article 35A, and has reiterated that the provision has become a permanent feature of Constitution of India.

The Supreme Court, which is hearing the petition filed by NGO ‘We the Citizens’, referred the matter to a three-judge bench last month and set a six-week deadline for its final disposal.

While the state has sought dismissal of the petition, the government of India on last hearing of the case in July this year decided not to support the state’s stand and instead asserted that the issue needs a “larger debate.”

The counter affidavit, settled by noted Constitutional lawyer Fali S Nariman, who is representing the J&K government in the court, reads that the grounds advanced in support of the PIL have already been adjudicated on two occasions by separate Constitution benches in cases titled Puranlal Lakhanlal V/S President and in 1962 and Sampat Prakash V/S State of Jammu and Kashmir and others in 1969.

“The legal contentions similar to the one raised in the PIL were already raised and argued…which have been negated and rejected already. Therefore the instant petition ought to be rejected,” the state has said in its 9-page affidavit, a copy of which is with Greater Kashmir.

A senior official in the state government said the argument raised in the PIL that the Article 35A is in violation of the fundamental rights was legally invalid.

Explaining, the official said when Constitution of India came into effect on January 26, 1950 only Article 1 and Article 370 were made applicable to J&K. Subsequently, when the first Presidential Order was issued, the official said, part III of the Constitution pertaining to fundamental rights was not made applicable to J&K.

He said prior to Delhi Agreement of 1952 between Sheikh Abdullah and Jawaharlal Nehru, J&K had reservation over extension of fundamental rights to the state.

“Then State Constituent Assembly recommended to the government that if fundamental rights are to be made applicable to J&K then 35A shall be inserted as part of Constitution. This became the basis for state government’s concurrence to applicability of the fundamental rights to the state,” the official said.

The PIL while seeking that Article 35A should be declared unconstitutional, has contended that the President “couldn’t have amended the Constitution by the 1954 order and it was supposed to be a temporary provision.”

But according to the official if 35A would not have been inserted into Constitution of India then state would have not agreed to extension of fundamental rights to J&K.

“We can argue that the state would have come up with its own fundamental rights had 35A not been inserted into the Constitution,” said the official, adding the Article 35A has become the permanent feature of the Constitution.

“It is part and parcel of part III of Constitution of India which pertains to fundamental rights. The part III has to be read conjunctively along with 35A implying that it is an exception to the fundamental rights given to other person that would mean if any person have fundamental rights to purchase land, buy property or apply for jobs, there is an exception that everybody can’t have these rights in J&K,” said the official. 

The official said it is the legal argument in defense of the Article 35A and if required the government will be adding it as supplementary to the affidavit in the Supreme Court.

The state’s affidavit also reads that the petitioner merely seeks to “re-agitate the issues” which have already been “considered, deliberated and decided” by the Court, adding the fresh challenge to the Article 35A is not only legally misconceived but is also hit by “extraordinarily delay and latches” of more than 60 years without any explanation.

The state has reiterated that the Article 35A doesn’t in any way infringe upon the fundamental rights guaranteed to the citizens and the alleged ground of the challenge that the Article creates special class of citizens is incorrect.

The renewed demand for abrogation of the Article by BJP and rightwing groups has led to a growing clamour in J&K for its protection.

While ruling PDP and opposition parties including National Conference have voiced concerns about fallout of the removal of the Article 35A, the separatists have also lend their support to the fight against removal of the Constitutional provision, warning of an agitation.