Srinagar: The J&K government has hired eminent constitutional lawyer Fali Nariman as the leading counsel to argue its case in the Supreme Court against the abrogation of Article 35A.
J&K Advocate-General Jahangir Iqbal Ganaie told Kashmir Reader that “Article 35A cannot be removed as it was passed through a Presidential Order in 1954. Modifications can only be made by the President, with approval from the state,” Ganie said.
“The mechanism provided is that no provision of the Constitution of India would apply to the State of J&K unless the President of India notifies its application to the State, and while doing so the President is empowered to apply the provision with “exceptions” and “modifications”. This has to be done by the President with ‘concurrence’ of the Government of Jammu and Kashmir,” Ganie said.
“It is in line with this mechanism that in 1954 the President made an order called Constitution (Application to Jammu and Kashmir) Order with effect from May 14,1954, and applied Article 35A to the State as a new provision in the Constitution,” he added.
Article 35A provides that a person will be treated as a “Permanent Resident of J&K” only in accordance with the law which was already in force in the State before May 14, 1954. It further provides that the Permanent Residents will continue to enjoy Special Rights and Privileges in the matter of (1) Employment under the State (2) Acquisition of immovable property in the State (3) Settlement in the State (4) Scholarship and aid as the State Government may provide. Any law which gives these Special Rights and Privileges to the Permanent Residents of the State cannot be declared null and void by any court.
A petition for abrogation of Article 35A was filed last month by Delhi-based NGO ‘We the Citizens’.
The apex court will hear the petition in the first week of September.
In July 2015, Justice Muzaffar Attar and Justice AM Magrey of the JK High Court had underlined the importance of Article 35A and said it was only a “clarificatory provision” to clear the constitutional position obtaining in the rest of the country in contrast to J&K.
“The power of Parliament to make laws in respect of J&K is circumscribed. It can make laws for it only where permitted by the state and not otherwise, and that, too, in accordance with the mechanism prescribed by Article 370 of the Constitution of India,” the High Court said, emphasising that the Constitution of India could not apply, by its own force, to J&K.