Reasons for SC to reject petition on Article 35-A

The Supreme Court has postponed the hearing of the petition on Article 35-A, under which the J&K legislature is empowered to decide who “permanent residents” of the state are, to January 2019 on the plea of the Centre as well as the J&K government that the issue is sensitive in Kashmir and its hearing could cause turmoil and violence at a time when preparations for the panchayat poll in the state (slated for October-December this year) are going on.

In practical terms, the Centre and the state government, since J&K is under central rule, are the same at the moment. In effect, the top court has deferred to the logic of the ruling dispensation. Two, even at a later date, the sensitivity of the issue does not go away. The Centre had sought postponement of the case in October 2017 as well.

If the hearing of the case — only to determine whether it should be given over to a constitutional bench to decide — is moved to next year when the political preparation for the next Lok Sabha election will be in full flow, the ruling BJP could be given a handle to exploit the issue politically to claim before its core constituency that the government is serious about taking steps to end J&K’s special status even if Article 370 is to be tolerated.

The reason is that it is Article 35-A which provides that land and property can be held in the state only by its “permanent residents”, and state government employment and state educational scholarships can only be availed of by the same category of persons. These were crucial questions at the time of accession of J&K to India. This particular article — a carryover from the Maharaja’s days — was inserted into the Constitution through a Presidential Order in 1954, which flows from the authority given to the President under Article 370 (i) (d) of the Constitution.

Several presidential orders have been passed but it is only Article 35-A that has been challenged by a RSS-oriented NGO. This itself should alert the top court to the political design of the petitioners. Besides, the power of the President flowing from Article 370 (i) (d) to issue presidential orders has been challenged twice. On both occasions the petitions were dismissed by constitution benches. This aspect continues to be overlooked by the apex court for reasons that are unclear.

Challenge in the Supreme Court to Article 35-A had caused complete shutdown in the Kashmir Valley on five days — not all consecutive — last month. This is because all sections of political opinion, separatists and mainline parties, are united in thinking that this provision forms an integral part of the special compact under which J&K, then a princely state bordering Pakistan, acceded to India after Independence. Seeking its removal runs the constitutional and political risk of creating circumstances to question that accession. It is not merely a point of law under debate here. Ideally, the top court should dismiss the petitions in light of the ruling of the constitution bench on earlier occasions.