Neeraj Rohmetra
Jammu, Dec 3: State Government today strongly defended before Supreme Court the Constitutional validity of Article 35A of the Constitution, which allows the State of Jammu and Kashmir to grant special privileges and right to permanent residents.
The State Government has quoted several judgements pronounced by Constitutional Bench of the Apex Court on different occasions to vindicate its stand.
The affidavit on behalf of the State Government was filed by leading Constitutional expert of country Fali S Nariman and Advocate General, Jahangir Iqbal Ganai. Central Government, which is also respondent to the case failed to file any affidavit before the Supreme Court Registry today.
While terming the petition challenging the validity of Art 35A of the Constitution as ‘legally misconceived’, the affidavit of the State Government which is in possession of EXCELSIOR says, “the issue of Art 35A and the grounds advanced in support of the claims of petition had already been adjudicated at least on two occasions by separate Constitutional Bench of the Apex Court”.
Quoting SC judgements, the document says, “the writ petition ought to be dismissed in view of the verdict pronounced by the Constitutional Bench in ‘Puranlal Lakhanpal V. President of India & Others, (1962) 1 SCR 688’ and ‘Sampat Prakash V. State of Jammu and Kashmir and Another, (1969) 2 SCR 365 and therefore the issues raised in the instant petition are no longer res integra”.
“The legal contentions, similar to the ones raised in the petition, were already raised and argued in the Puranlal and Sampat Prakash case. However, the Apex Court in both these cases had negated and rejected the said contentions. The judgements holds good even today and are squarely applicable to the instant petition”, says the affidavit signed by Additional Secretary Law, Mustafa Ahmad Wani.
Questioning the delay in filing of petition, the affidavit says, “the Constitutional Order of 1954 came into force on May 14, 1954 and the instant petition, challenging its vires, has been preferred after a delay of more than 60 years”.
The issue raised in the petition had been well dealt in the Constitutional Bench decision in Puranlal Lakhanpal and Sampat Prakash Case. Further, the provisions enacted in Article 35A of the Constitution had been continuously acted upon and treated as valid, the same ought not be permitted to be challenged.
“The Constitutional Bench also dealt in detail on the powers of the President to amend the Constitution by incorporating a new Article of permanent nature and was in no manner exceeding his powers by incorporating Article 35A in the Constitution of India”, says the document.
The affidavit says, “since Article 370, as enacted and amended remained in the Constitution of India, as an integral part thereof and since Presidential Order of 1954 i.e. Constitution (Application to Jammu and Kashmir) Order, 1954, has been recognised and acted on, as valid, ever since its promulgation and have been challenged, the challenge has stood rejected by the two Constitutional Benches of the Apex Court”.
“The petitioner herein has deliberately omitted to notice the impact of the proviso to Article 368(2) of the Constitution of India, which is to the effect that no amendment by the Parliament in the Constitution under Article 368 would ever have effect in relation to State of Jammu and Kashmir unless applied by order of the President under Clause -1 of Article 370”, the document added.
The affidavit has also opposed the contention of the petitioner that Article 370(1) of the Constitution of India doesn’t contemplate or permit the Presidential order amending the Constitution of India and its application in the State of Jammu and Kashmir. “Article 35A of the Constitution also doesn’t infringe any fundamental right guaranteed to citizens as alleged or that the provisions of Article 368 of the Constitution hold the field even in respect of matters covered by Article 370 of the Constitution”. Article 35A of the Constitution cannot be considered to be in contravention of Articles 14,19 and 21 of the Constitution of India as alleged”, says the affidavit.
The Supreme Court Registry admitted the affidavit filed by State Government and criticised the Centre for their failure to file any affidavit. The Registry instructed that the case be listed before the SC Bench for further hearing on the issue.
The preliminary affidavit was filed in response to a writ petition filed by Sandeep Kulkarni, President of a Society called “We the Citizens”, wherein the latter has contended that the restriction imposed through addition of a new Article 35-A to the Constitution was beyond the President’s powers under Article 370(1)d. The impugned provision is part of a Presidential Order of 1954 and has serious repercussion on the Status enjoyed by J&K.
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