A bunch of petitions challenging the constitutional validity of the Article 35-A has been listed for hearing on Friday.
The petitions would be heard by a three-judge bench headed by Chief Justice of India DipakMisra in the court No. 1, commonly known as Chief Justice’s court. Two other judges of the bench are Justice A M Khanilwar and Justice Chandrachud. The petitions figure at serial number 18 among the cases listed for August 31.
The petitions are being heard at a time when new Governor Satya Pal Malik has taken over reigns of the state from N N Vohra.
On the last hearing when Vohra was at the helm, the state government had sought adjournment of the hearing, citing engagement of state machinery with local body polls.
Interestingly, assistant solicitor general of India, Tushar Mehta had then appeared on behalf of the state, indicating that Centre was also in favour of adjourning hearing of the case.
The Court had then adjourned the hearing due to absence of one of the judges of the bench.
Although state Law secretary Abdul Majid Bhat and advocate general DC Raina were on Sunday quoted by a local news agency as saying that state government would defend the constitutional provision, it would be interesting to watch the line of action adopted by state over the issue after change of Governor.
The new Governor, Satya Pal Malik, who is presently in Delhi and met President Ram NathKovind and Prime Minister NarendraModi on Monday, is likely to return to the state on Wednesday.
On the last hearing of the case, the Apex Court had said that a three-judge bench would decide whether the pleas challenging Article 35A, should be referred to a five-judge Constitution bench.
“Once you (petitioners) have challenged the constitutional validity of Article 35-A, a three judge bench would decide whether they have to go before a Constitution bench. A three-judge bench will determine it. A three-judge bench has been dealing with it,” the CJI had said.
A legal expert told Kashmir Post that referring the matters to a constitution bench means that one of the arguments put forth by the state would be rendered inconsequential.“It would mean that state’s argument that the issue has been settled by two constitution bench judgments has not been accepted by the Court”, former advocate general, Jehangir Iqbal Ganie told .
Meanwhile, The change of Governor notwithstanding, the state government will press for the deferment of hearing into the petitions challenging the validity of Article 35A of the Constitution, citing the forthcoming panchayat elections.
As the matter is slated to come up before the Supreme Court on August 31, sources said the lawyers representing the J&K Government had been given “instructions” to seek the adjournment of the hearing into the matter.
“The matter is listed on August 31. Our stand would be the same that we had taken earlier. The J&K Government will request for an adjournment,” a J&K Government law official connected with the matter disclosed on condition of anonymity.
When the matter had been listed on August 8, the previous J&K administration headed by NN Vohra had sought an adjournment of the hearings on “account of the ongoing preparations for the upcoming panchayat/urban local bodies and municipal elections.”
The official said there was “no other option for the J&K Government other than to seek the adjournment till December”, as it had done earlier.
However, J&K Law Secretary Abdul Majid Bhat when contacted said he could not discuss with the media what stand the state government was going to take before the Supreme Court.
“As stated in our preliminary objections in the matter, our stand is that the matter related to 35A has already been settled (in 1962 and 1969) by the apex court”, he said while refusing to disclose the stand.
The writ petitions challenging Article 35A were adjudicated by the Supreme Court in Purandal Lakhanpal versus President of India and others in 1962 and Sampat Prakash versus the state of Jammu and Kashmir and others in 1969.The contentions were rejected in both cases.
