Article 35A: BJP calls for repeal while Kashmir govt pays high-priced lawyers to defend it in Supreme Court

While the Bharatiya Janata Party publicly favours abrogation of the Article 35A of the Indian Constitution, which empowers the Jammu and Kashmir legislature to define the state’s "permanent residents", the state government (where it is is a junior partner) is paying a hefty amount to four senior lawyers to defend the legislation in the Supreme Court.

File image of Mehbooba Mufti. PTI

File image of Chief Minister Mehbooba Mufti. PTI

A communication for disbursing remuneration accessed by Firstpost revealed that the PDP-BJP government is paying Rs 21.50 lakh to senior advocate Fali Nariman, Rs 8.10 lakh to senior advocate Shekhar Naphade, Rs 10.30 lakh to Rakesh Dwivedi and Rs 4.50 lakh to constitutional lawyer KV Viswanathan per sitting to mount a 'strong' defence of Article 35A in the Supreme Court. That's Rs 44.40 lakh per hearing. Former PDP leader and Jammu and Kashmir finance minister Tariq Hameed Karra is defending the Article as a private party.

Minister for Rural Development, Law and Justice in Jammu and Kashmir, Abdul Haq Khan, confirmed these details to Firstpost and said the government was "forcefully defending" Article 35A and Article 370. He said the law department has hired a battery of senior advocates to vigorously pursue the case.

“It's more than Rs 44.40 lakh. In fact, this is a nominal fee as these are very senior lawyers,” Khan told Firstpost. The first blow was inflicted when a petition filed by an NGO on grounds that Article 35A was illegally added to the Constitution as it was never proposed passed by the Parliament, was admitted by the apex court. The main petition was filed in 2014 by 'We the Citizens', a Delhi-based NGO with suspected Hindu right-wing connections. Three more petitions were also filed, including by a woman, challenging the Article on the grounds that it was “violating” the “right to equality”, a fundamental right.

A political furore erupted in Jammu and Kashmir last year after the apex court clubbed together four petitions challenging the constitutionality of Article 35A and sent them for hearing before a Constitutional Bench.

Chief Minister Mehbooba Mufti was accused of failing to grasp the seriousness of the matter. In a rare show of unity, the issue brought together the political parties: Which awoke the coalition government from its slumber. The appointment of the senior lawyers occurred only after parties across the ideological lines — including the Hurriyat — pushed the state government to take the matter seriously.

Bhartiya Janata Party state president Sat Sharma said he has no knowledge about the lawyers being employed by the state government and that his party’s “stand has not changed that there would be no tinkering with the article till an alliance between PDP and BJP is intact.” “These are big lawyers and have to be paid handsomely”, Sharma added. “But this Article has to go one day”.

An official of the Jammu and Kashmir law department refused to speak on the matter, saying the fee of the lawyers is not a “matter for public debate”. When asked if BJP leaders were in the know about the decision, the officer said “all leaders were informed about the decision.”

Other BJP leaders, including outspoken legislator Ravinder Raina, have remained uncharacteristically silent. Senior Congress legislator GM Saroori told Firstpost the BJP has been playing politics on issues that “have been settled constitutionally”.

“They know they can do nothing with this provision and the hue and cry made is just to confuse the people of Jammu and Kashmir and benefit from their emotions. The BJP is pitting one community against another,” Saroori added. An email to senior advocate Nariman from Firstpost received no response.

What is Article 35A?

Article 35A, which was added to the Indian Constitution by a Presidential Order in 1954, accords special rights and privileges to the citizens of Jammu and Kashmir. Mehbooba recently warned the Centre that if there was any tinkering with Article 35A, no one would shoulder the tricolour in Jammu and Kashmir.

Apart from imposing complete ban on the acquisition of immovable property by non-permanent residents of the state, Article 35A declares that a non-resident is disqualified for registration in the electoral rolls as a voter and from holding any government job in the state. They can, however, vote in the general elections.


Updated Date: Feb 08, 2018 22:05 PM

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