Apex Court defers hearing; but why is J&K roiled up about Article 35A?

Amid total shutdown called by separatists for the second consecutive day on Monday, the Supreme Court adjourned hearing of petitions challenging the constitutional validity of the Article 35-A, which gives special rights and privileges to people of Jammu and Kashmir, and fixed August 27 as the next date.

The two-judge bench headed by Chief Justice of India Dipak Misra, adjourned hearing of batch of petitions challenging validity of Article 35 A of the Constitution for two weeks. Maintaining that the court will examine whether Article 35 A violates basic structure of the Constitution, the CJI said that the Attorney General will be heard at length.

The CJI also remarked that three judges bench will decide whether case is required to be referred to five judges constitution bench.

The state government headed by Governor NN Vohra had on Friday moved an application before the top court and sought to defer the hearing of the case, citing upcoming panchayat and urban local body elections.

Earlier in May, the top court had deferred the hearing of the case, saying that the government-appointed interlocutor, Dineshwar Sharma, is making efforts to find a solution; in such a situation, passing an interim order could prove futile.

The Union government decided not to file a counter affidavit in order to leave the Supreme Court free to decide on what is essentially an interpretation of the law and the Constitution.

Article 35A, incorporated in the Constitution by an order of President Rajendra Prasad in 1954 , confers special status to the permanent residents of Jammu and Kashmir. A Delhi based NGO, ‘We the Citizens’ has filed one of the petitions challenging the validity of Article 35A that guarantees hereditary special citizenship rights to the people of the state and bars non-state residents from buying land and applying in various government jobs in the State.

The NGO, in its petition, has argued that it is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. In their petition, they have questioned if barring citizens of other states from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights guaranteed under Articles 14, 19 and 21 of the Indian Constitution.

The NGO’s petition wants to Supreme Court to examine if the President acted outside the purview of his powers and whether Article 35A should be struck down as invalid because the Nehru government did not place it before the Parliament for the discussion, reported the website Live Law.

The affidavit filed by senior advocate Fali S Nariman, who is representing the state, contends that the petition challenging the validity of the Constitutional provision has been filed after a delay of more than 60 years, arguing that the petition seeks to “upset settled law, accepted and complied with by all”.

The state has also questioned the bona fides of the petitioner, claiming that it is a “busybody, a meddlesome interloper, who has filed the petition seeking publicity”.

Meanwhile, routine life in Kashmir remained severely affected today for the second consecutive day due to a complete shutdown called by separatists against the legal challenge in the Supreme Court on the special status of the state.

The two-day strike called by the Joint Resistance Leadership (JRL)—comprising Syed Ali Shah Geelani, Mirwaiz Umar Farooq and Mohammad Yasin Malik—comes as the Supreme Court is scheduled to hear a PIL challenging the validity of Article 35A later in the day.

Educational institutions, shops and business establishments remained closed across the Valley, while all kinds of transport remained off the roads due to the strike.

Officials said the security forces had been deployed at vulnerable places in the city and stone-pelting incidents were reported from some places yesterday, with six people getting injured in Kulgam district in a clash between protesters and security forces. Various organisations. including the state bar association, transporters and traders' bodies have extended support to the shutdown call.

Protests have been held across the length and breadth of Kashmir over the past few days, with mainstream parties like National Conference and Peoples Democratic Party (PDP) also holding rallies in support of continuing Article 35A.

With PTI Inputs