Fraught challenge

IN a fresh twist to the ongoing legal challenge to Article 35A, the Supreme Court has asked the J&K Government to file its objections by the first week of November to a petition filed by an RSS-linked think-tank Kashmir Study Centre. The think-tank has questioned the constitutional validity of 35A, which debars non-residents of J&K from buying land or property and getting a government job or voting rights in Assembly elections. The RSS contention is that the President of India had ordered to include 35A in the Constitution without the parliament’s approval and hence the article is unconstitutional.

The petition in the Supreme Court wants the 35A removed to pave the way for settling citizens from the rest of India in J&K. Issued as part of the ‘Constitution (Application to Jammu and Kashmir) Order, 1954’ the provision empowers the J&K legislature to define “permanent residents” of the state. Following this, the J&K Constitution, which was adopted on November 17, 1956, defined a Permanent Resident of the state as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has “lawfully acquired immovable property in the state”. The J&K legislature could alter the definition of Permanent Residents through a law passed by two-thirds majority.

In fact, the Article 35A is the replication of the 1927 order issued by the then Maharaja of Kashmir Hari Singh providing safeguards for the permanent residents of the state. The order was issued in response to an outcry in Jammu against the influx of the people from Punjab in the state many of whom held positions of authority in Maharaja’s establishment.

However, with Supreme Court seeking response from the state government to the RSS petition the issue has assumed not only legal but also political dimensions. On the legal side, the state government has to take up the gauntlet to defend 35A. The top officials of the state Law Department are meeting this week to chalk out the response to the petition and also the reply to the Ministry of Home Affairs (MHA), which has sought the views of the J&K Government on the provision.

However, in a judgment on July 17, J&K High Court said that the Article 35A clarifies the already existing constitutional and legal position and does not extend something new to the state. “This provision clears the constitutional relationship between the people of the rest of country and the people of J&K,” the High Court ruled, thus upholding the special status of J&K under Article 370.

However, the issue is far from settled. The fate of the petition in the Supreme Court has a profound legal and the political significance for J&K. What if the apex court rules in favour of the Kashmir Study Centre? Shall it clear the decks for the settlement of the citizens from the other parts of India in the state? What about the attendant political fallout? These are the troubling questions with no easy answers. But if at all the executive order incorporating Article 35A in India’s constitution is rescinded, what about the many other such orders extended to the state from 1953-75 which undermined the Article 370 and in turn the special status granted to J&K under it? All such orders will also be similarly challenged and will be thus liable to be similarly revoked.

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