Article 35A: J&K governor's decision to seek deferment of case is based on promises made in the past

Srinagar: The decision of Governor NN Vohra to seek deferment of the case over Article 35A of the Constitution in Supreme Court is in contrary to the policy of former chief minister Mehbooba Mufti, who had decided to fight the case vigorously and had even questioned whether Kashmiris would remain Indian citizens if the law was revoked. Article 35A bars outsiders from owning property and getting government jobs in the state.

In the previous order which was issued by the Supreme Court, the three-member bench had ordered that the matter of Article 35A which was challenged by “We The Citizens’’ should be listed at 2 pm on 6 August and the pleadings from all angles shall be completed.

Although the Jammu and Kashmir government had filed a counter affidavit previously in the case, since Supreme Court directed that the pleadings should be completed, it prepared a “detailed draft” in the matter which was submitted to the state’s law department.

Former advocate general Jehangir Iqbal Ganie said that the government had decided that the case will be pursued vigorously. He said that in the counter affidavit that has been submitted to government before he demitted office, it was noted that the chapter of the Constitution, as per which residents of the state became citizens of India, was accepted by the Jammu and Kashmir constituent assembly on the condition that Article 35A will recognise the state subject rights of the people.

Article 35A protest in Kashmir. Representational image. Reuters

Representational image. Reuters

Ganie added that the constituent assembly which was convened during the time of former prime minister of Kashmir Sheikh Abdullah had also accepted the chapter on fundamental rights after an assurance that Article 35A in the Constitution will recognise the right of the people of the state.

Instead of framing its own fundamental rights in the state constitution, which the BJP is seeking to be annulled, the Sheikh Abdullah government had accepted the fundamental rights and the citizenship of India.

“In the detailed counter affidavit draft, we have given historical background which is very important. That's why 35-A came into being. When the Constitution was being framed, we could have had our own chapter on fundamental rights. In that case, the fundamental rights in the Indian Constitution wouldn’t have been applicable to the state of Jammu and Kashmir,” said Ganie.

“We have a strong case about the Article 35A. The state constituent assembly accepted the chapter pertaining to citizenship only when Article 35A was incorporated. The presidential order about 35A is the draft which was sent by constituency assembly. These things were not applicable to the state, neither the citizenship provision of the Indian Constitution nor the chapter pertaining to fundamental rights,” he said.

The acceptance of Indian citizenship and fundamental rights was a major political concession which had come immediately after Jammu and Kashmir acceded with the Union of India on the promise that the Parliament would only have powers to make laws concerning defence, external affairs and communication.

However, the accession has been termed invalid by separatists on the plea that the Hindu Maharaja acceded with the Indian Union, even when majority of the people were Muslims. They are rather demanding that the UN resolution on referendum should be implemented in the state.

The apex court case on Article 35A is more about political settlement on Kashmir than only a resolution of a legal tangle involving the question of whether the president was empowered to introduce the law in the Indian Constitution when the procedure was that it was to be done by the Parliament.

However, Ganie said that Article 35A was a matter of commitment by the Government of India that the state subject rights will continue. He said that the state’s own state subject law could also go in case Article 35A was revoked by the Supreme Court.

Previously, the apex court had agreed to the deferment of the case and the state is looking at convincing the Union government to also file a plea for the case to be deferred. Even when the PDP and BJP ran an alliance in the state, while the state filed a counter affidavit, the Attorney General of India pleaded before the court that “a conscious decision has been taken not to file any counter affidavit in this case, because the issues which are raised for adjudication, are pure questions of law.”

Although BJP has been against the continuation of Article 35A, the decision by Vohra to “play safe by seeking a deferment” — seen by many in the state as his unwillingness to defend Article 35A — has, however, also implied that the Centre and state are at loggerheads.

Officials in the state said that since the governor enjoys a tenure which the Jammu and Kashmir constitution describes as the “pleasure” of the President, he has put the Centre in a difficult situation.

“Whether the governor be representing the Centre or the state is something which will be interesting to watch out for as the case is listed for hearing in the SC,” said advocate Bashir Sidique.

Although the state is facing protests in favour of retention of Article 35A and separatists have given a shutdown call as well, the case in the Supreme Court is also about the historical position of the state. The High Court Bar Association of Kashmir has filed an intervention application so that they can be heard. The application talks of implementation of UN resolutions on Kashmir which promised plebiscite.

President of the HCBAK, Mian Qayoom, said that a team of Bar Association will plead the case in Supreme Court.

There are many not only in Srinagar but also in Jammu who are threatening of agitation in case Article 35A is revoked. Gujjar leader Shah Mohammad Chaudhary said, “We are ready for an agitation if the Article 35A is revoked. We were given the rights when the Constitution was framed by the constituent assembly. Whatever protections whether they are statutory or constitutional should remain as they existed for the last 70-years.”


Updated Date: Aug 03, 2018 18:26 PM

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