October 2017 News

Supreme Court Defers Article 35-A Hearing By 3 Months

30 October 2017
Greater Kashmir
DA Rashid

Srinagar: The Supreme Court on Monday deferred for nearly three months the hearing of pleas challenging Article 35-A which confers special rights and privileges on J&K's permanent residents. A three-judge bench comprising Chief Justice of India Dipak Mishra, Justice Ajay Manikrao Khanwikar and Justice DY Chandrachud putt off the hearing for 12 weeks following the submission by attorney general, KK Venugopal. 'As the matter came up for hearing, the AG made a submission that the matter may be deferred for four months as the central government has appointed an interlocutor on Kashmir and the proceeding will hamper the talks,' an advocate from the J&K High Court, who was present during the hearing, told Greater Kashmir. The court, he said, first granted eight weeks but finally agreed for 12-week deferment. The central government has recently appointed former Intelligence Bureau chief Dineshwar Sharma to hold a 'sustained dialogue' in Jammu and Kashmir. Senior advocate and constitutional expert Fali S Nariman represented the Jammu and Kashmir State along with J&K's advocate general Jahangir Iqbal Ganai and standing counsels GM Kawoosa and ShoebAlam. A team from the Kashmir Bar Association comprising its president, Mian Abdul Qayoom, senior advocates Zaffar Shah, Reyaz Jan, besides AdilAzmi and Arshad Andrabi-as also Congress leader Tariq Hamid Karra-were also present. In 2014, a little-known non-governmental organisation 'We the Citizens' approached the apex court seeking scrapping of Article 35-A which defines special privileges enjoyed by permanent residents of J&K in matters related to employment, acquisition of immovable property, settlements and scholarships. Subsequently the West Pakistan Refugees Action Committee and CharuWali Khanna and DrSeemaRazdan challenged the constitutional provision before the apex court. Article 35-A was added to the Constitution by a Presidential Order in 1954. The Article was extended to J&K through the 'Constitution (Application to Jammu and Kashmir) Order issued by President Rajendra Prasad on May 14, 1954. It was specifically devised to grant protection to state subject laws that had already been defined under the Maharaja's rule and notified in 1927 and 1932. The BJP, RSS and their affiliate groups are opposed to the Article as it bars non-J&K subjects to settle or buy property in the state. J&K has filed an affidavit in the apex court demanding dismissal of the petition(s) but the government of India has shown its disinclination to file its affidavit so far. This is not for the first time that Article 35-A has been challenged in the Supreme Court. Similar petitions have been dismissed by the court thrice in 1956, 1961 and 1970, while upholding the powers of the President to pass such constitutional orders. Article 35-A 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. Legal experts hold the view that a person who does not qualify as a Permanent Resident of the State under the law as was applicable before May 14, 1954 cannot now become the Permanent Resident. They said that the law is also protected by the Constitution of Jammu and Kashmir. According to the legal experts, the law which gives the special rights and privileges under Article 35 A to the Permanent Residents of the State cannot be declared null and void by any court on any ground. They contend that Article 35-A has been added in the Constitutional Application Order 1954 and by questioning it, the entire Constitutional Application Order will have to be questioned. The Constitutional link between the Union and the State, they say, will be snapped and the position of the State will be same as it was before constitutional arrangements were worked out and it will also affect various provisions of the Constitution of the State and result in Constitutional crisis.

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