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Supreme Court adjourns Article 35A matter till last week of August, next hearing to decide if it will be heard by five-judge Constitution bench

In the next hearing, the three-judge bench which has been hearing case will decide whether issue of Article 35 A has to be referred to five-judge Constitution bench, the apex court said.

Edited by: India TV News Desk, New Delhi [ Updated: August 06, 2018 12:02 IST ]
Supreme Court defers Article 35A hearing till August 27
Image Source : FILE

Supreme Court defers Article 35A hearing till August 27

Supreme Court today adjourned hearing on pleas challenging Constitutional validity of Article 35 A pertaining to Jammu and Kashmir. Petitions on Article 35 A will now be heard in week commencing August 27, CJI Dipak Misra said. 

The crucial hearing was adjourned as Justice DY Chandrachud, one of three judges in bench, was not present, says CJI. 

In the next hearing, the three-judge bench which has been hearing case will decide whether issue of Article 35 A has to be referred to five-judge Constitution bench, the apex court said.

Earlier, the Jammu and Kashmir government had said that it will seek the postponement of the case in view of the pending Panchayat polls in the state.  

The Constitutional provision gives special rights and privileges to the Jammu and Kashmir natives and bars people from outside the state from acquiring any kind of immovable property in Jammu and Kashmir. 

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Also read | Shut down over Article 35A cripples life for 2nd day in Jammu and Kashmir

Unrest in Valley

Life in Kashmir has been thrown out of gear even before the hearing. The state is witnessing a two-day complete shutdown since Sunday morning. Peaceful protests were held across the state, with demonstrators vowing to defend the constitutional provision. Traders organisations took out a protest march and also held a sit-in dharna at the Ghanta Ghar (Clock Tower) in Lal Chowk in support of continuation of Article 35-A. Similar rallies were also held at Zadibal, Karfali Mohalla, Rainwari, Anchaar, Dalgate, Rambagh, Khanyar and Parimpora.

Officials said that peaceful rallies were carried out at several places in other districts and towns of the Valley. However, officials added that there were reports of minor stone pelting incidents from some parts of the Valley. They added that some miscreants were chased away by the security forces.

There were no reports of anyone getting injured in the clashes, officials said.

India Tv - Srinagar: Kashmiri traders hold placards and raise slogans during a sit-in protest against the petitions in the Supreme Court challenging the validity of Article 35A, in Srinagar on Sunday, August 05, 2018.

Image Source : PTI

Srinagar: Kashmiri traders hold placards and raise slogans during a sit-in protest against the petitions in the Supreme Court challenging the validity of Article 35A, in Srinagar on Sunday, August 05, 2018.

Arguments of the case

The petition in the case has been filed by a Delhi-based NGO, We the Citizens, saying the state’s autonomous status granted by Article 35(A) and Article 370 of the Constitution discriminate against fellow citizens from the rest of the country.

Article 35-A gives special rights to the permanent residents of Jammu and Kashmir and disallows people from outside the state from buying and owning immovable properties, settle permanently ans avail themselves of state-sponsored scholarship schemes. It also bars the Jammu and  Kashmir government from hiring people who are non-permanent residents.  Article 35A was added to Article 370 by a Presidential order in 1954.

According to the NGO, Article 35A should be held “unconstitutional” as the President could not have “amended the Constitution” by way of the 1954 order, and that it was only supposed to be a “temporary provision”. The Article was never presented before Parliament, and came into effect immediately.

The Jammu and Kashmir government has contested the petition, saying the President had the power to incorporate a new provision in the Constitution by way of an order.

Also read | What is Article 35A: All you need to know about contentious Constitutional provision | Watch video 

NGO wants Constitution bench to hear plea for scrapping Article 35A

The RSS-linked NGO, which has moved the Supreme Court for scrapping Article 35A has said it would seek hearing of its plea by a Constitution bench.  “There is no need to defer the hearing again… We are going to tell the Supreme Court through our counsel tomorrow that our petition on Article 35A should be decided by a Constitution bench,” Chetan Sharma, convener of the J&K chapter of the civil society 'We the Citizens', told reporters in New Delhi on Sunday. 

“We are ready for an argument. Those who want an argument over it should come forward. How long will it be deferred? Delaying the judgement is not the solution,” Sharma said. 

Without naming anyone, he said the NGO was also approached by "certain persons" to seek deferment of the case. 

“We want an argument over the issue. We have filed the main petition seeking revocation of the article 35A and eight petitions were filed jointly against our petition in the Apex court,” he said. 

India Tv - Srinagar: Security personnel patrol a street during a two-day strike called by the separatist leaders against the petitions in the Supreme court challenging the validity of Article 35A, in Srinagar on Sunday

Image Source : PTI

Srinagar: Security personnel patrol a street during a two-day strike called by the separatist leaders against the petitions in the Supreme court challenging the validity of Article 35A, in Srinagar on Sunday

He dismissed as “propaganda” that revocation of the Article would cause a massive jolt to the state and said Kashmir-centric parties and "some so-called intellectuals in Jammu" are misleading the people on the issue even as it is sub-judice. 

“We do not have the right to speak on the issue either as it is pending before the Supreme court. But certain developments over the past couple of days compelled us to negate the propaganda in the state,” he said. 

“Those issuing threats of mass agitation in Kashmir and elsewhere must remain within limits as their poisonous propaganda with malafide intentions to subjugate masses would boomerang,” he said, adding that pressurising the Supreme Court by issuing threats is unlawful and demands legal action. 

“We appeal to the central government and the state administration for dealing these anti-nationals with iron hand. The Supreme Court decides on the facts and cannot be pressurised by the masses. We have deep faith in the Indian judiciary and the Indian flag will keep fluttering with all its might,” he said. 

In an apparent reference to the National Conference provincial president Devender Singh Rana over his statement that the revocation of the Article 35A is detrimental to the interests of the people of the state, he said “a lawmaker recently said the 'state subject' law was introduced by the Maharaja Hari Singh to safeguard the interests of the people of the state. 

"Maharaja was the king and the owner of the princely state before its accession with India. Post accession, there is no need for such a discriminatory provision," he said.

He appealed to Governor NN Vohra to register criminal cases against those who were conspiring to undermine the national integrity by making anti-national statements on the issue.

'Repealing Art 35A will end JK's relationship with rest of the country'

Outspoken IAS officer Shah Faesal today said repealing of Article 35A of the Constitution would end Jammu and Kashmir's relationship with the rest of the country.

Faesal, a 2010-batch IAS exam topper, is currently pursuing a mid-career masters programme in the US.
"I would compare Article 35A to a marriage-deed/nikahnama. You repeal it and the relationship is over. Nothing will remain to be discussed afterwards," he said in a tweet.

He said the accession of Jammu and Kashmir to India took place before the Constitution had come into force. 
"Yes and those who say Accession still stands forget that Accession was just like a Roka, because the Constitution had not come into force that time. 

Can Roka still bind two people together even after the marriage document is annulled?" he wrote. 

The IAS officer, however, said continuing the special Constitutional provisions in respect to Jammu and Kashmir did not pose any threat to the sovereignty and integrity of the country.

"Let's not confuse the issue. Sovereignty and integrity of India can't be challenged. Not at all. But the Constitution has kept some special provisions for J&K state. It's a unique arrangement. It isn't a threat to India's integrity at all," he said. 

Faesal is already subject to a disciplinary proceeding initiated by the Jammu and Kashmir government at the request of the Centre's Department of Personnel and Training for posting a tweet about frequent rapes in the country. 

(With inputs from PTI)

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