Spl rights to state natives cannot be challenged: J&K to SC

The Constitutional scheme according special rights to natives of Jammu and Kashmir has become a permanent feature of the Constitution and cannot be challenged now, the state government has told the Supreme Court.
The 1954-Presidential order to add Article 35A to the Constitution granted special rights to permanent residents of the state and empowered its legislature to frame any law without attracting a challenge on grounds of violation of fundamental rights of natives of other states.
Referring to two earlier judgements on the issue, the affidavit, filed by Muzafar Ahmad Wani, Additional Secretary (Law), sought dismissal of a PIL.
The PIL, filed by a Delhi-based NGO 'We the citizens', has sought to declare Article 35A as "ultra vires" to the Constitution on the ground that it violates fundamental rights of citizens hailing from other states.

It further added that the provision was "supposed to be a temporary" one.
The response of the Jammu and Kashmir government, settled by jurist Fali S Nariman, said, "the alleged ground of challenge that Article 35A of the Constitution creates special class of citizens and is therefore unconstitutional is incorrect.

"Article 370 of the Constitution as enacted has expressly made provision, 'notwithstanding anything in this Constitution' (opening words of Article 370 of the Constitution)."
"The said 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 instant petition seeks to upset settled law, accepted and, complied with by all," it said.

It further asserted that the President has the power to incorporate a new provision in the Constitution by way of an Order, as was done in the instant case.
The PIL be rejected as the matter has already been settled by the apex court long back by rejecting the contentions similar to those raised in the present plea, the affidavit said.
"The petitioner merely seeks to re-agitate issues, which have already been considered, deliberated and decided by this court," it said.
It also opposed the NGO's contention that the Constitution can be amended only under Article 368, which confers the power on Parliament.