The demise of PDP-BJP government has brought the focus back on legal battle for protection of Article 35-A, which empowers J&K legislature to define permanent residents and allows them exclusive right to buy land in the state.
All eyes will be on the defense the state mounts under Governor’s rule when the case comes up for hearing in the Supreme Court next month. “We expect the Governor to ask his government to fight the case with same zeal like we had done,” said senior PDP leader Naeem Akhter.
The state has a strong case and we should not be worried but the only thing is that we should not let it be decided by default and in such a scenario it can take us to the point of no return.”
The case is listed before three-judge bench in the apex court during first week of August. A petition challenging the Article was filed by Delhi-based NGO ‘We the Citizens’ in 2014. Later, three more petitions challenging the Article were admitted in the court but these were clubbed with the main one.
“It (the defense of the Article 35A) should continue as it was earlier,” said former advocate general, Jehangir Iqbal Ganai.
Article 35A is the provision in Indian constitution that grants exclusive state subject (full citizenship) rights and other privileges to permanent residents of the state. This provision was added to the constitution through the Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the country’s first president, Rajendra Prasad, on May 14, 1954.
The J&K constitution, which was adopted on November 17, 1956, defined a permanent resident as a person who was born or settled in the state before May 14, 1954, or who has been a resident in the state for 10 years and had “lawfully acquired” immovable property in the state before that.
A top official said directions had gone to authorities concerned to study the case in detail to prepare for the next hearing.
“We will first study what was the defense of the previous government and accordingly prepare,” the official said.
Last year when the case came up for hearing in the Court, government of India decided not to support the former PDP-led state government stand seeking dismissal of the petition.
Instead Attorney general KK Venugopal, appearing for New Delhi, had told the court that given the “sensitive” nature of the issue the government wanted a “larger debate” on the Article.
On the other hand the ruling BJP and RSS have been pushing for abrogation of Article 35A for a complete merger of J&K with union of India.
With fall of the state government earlier this month in which BJP was a coalition partner with the PDP, the former is now expected to openly raise openly the demand, though mainstream parties including National Conference and PDP have repeatedly warned New Delhi against any tinkering with Article 35A.
In Kashmir, the protection of Article 35A has become a hot topic with separatists having already warned of consequences if it was fiddled with.
Legal expert and former advocate general, M I Qadri said the previous state government had already taken a stand before the Supreme Court on Article 35A.
“Whether the present government will stick to that stand or take a different view remains to be seen,” said Qadri, a former advocate general who heads NC’s legal cell.
According to him “much” would also depend on who would be the next advocate general of the state after JehangirGanai remitted his office.“We are very apprehensive at this stage and can’t say conclusively what will happen, but I expect the Governor will stick to the stand already taken by the previous government which is in consonance with the constitutional spirit.”