Senior Bar lawyers all set to defend Article 35A in Supreme Court

A 14-member group of senior lawyers from the Kashmir Bar Association will appear before the Supreme Court on Monday to oppose the petitions seeking the scrapping of constitutional provisions which grant special status to Jammu and Kashmir.

Following its executive committee meeting today, the Bar has constituted the 14-member team to defend Articles 35A and 370 of the Constitution of India besides Section 6 of the Constitution of Jammu and Kashmir.

All these constitutional provisions are under challenge before the apex court at least in six petitions which included a Special Leave Petition against the Delhi High Court judgment dismissing a Public Interest Litigation against Article 370.

Bar has the contention that Articles 370, 35A and constitution of Jammu and Kashmir, which protect state’s special position, have been questioned to get rid of these provisions to bring state at par with other states of India notwithstanding the limited nature of accession, United Nations resolutions, the constitution of Jammu and Kashmir and the International Declarations.

The Article 35A was incorporated in the Constitution of India by the President through the Constitution (application to J&K) Order 1954. Under Article 35A, the J&K legislature is empowered to define permanent residents of the state and grant special rights and privileges to them.

The lawyers’ body pleads that Article 35A is a part of the Constitutional Application Order of 1954 and has been made by President of India, who alone is competent, and not the Parliament or Union Executive, to make Constitution for the State of Jammu and Kashmir.

President of India, the Bar says, was competent to apply the Constitution of India with “modifications” and “exceptions” to Jammu and Kashmir.

The Bar further contends that “all the Constitutional Application Orders, kind of ‘exceptions’ and ‘modifications’ they contain clearly establish that the State of Jammu and Kashmir is not and cannot be treated or equated with any other State of the Indian Union”.

The Bar contends that the Government of India Act, 1935, did not apply to the State of Jammu and Kashmir and the State under the said Act never became part of British India.

“The conditions of accession provided under Section 5 and 6 of the said Act were never fulfilled by Kashmir State,” it pleads.

The Bar team, who will plead the case on August 6 in SC, comprises of Bar president  advocate M A Qayoom, vice-president Mushtaq Ahmad Dar,  secretary GN Shaheen, joint secretary  AdilAsimi,  senior advocates ZA  Shah and Riyaz Ahmad Jan besides advocates  Manzoor Ahmad Dar, AltafHaqani, Muhammad ShafiReshi, Nazir Ahmad Ronga,  Muhammad Ashraf Bhat, Bashir Sidiq, MudasirYousuf and  MianMuzaffar.

The Bar has already submitted an intervention application in the SC.

In 2014, an NGO ‘We the Citizens’ filed a writ petition in the Supreme Court seeking the striking down of the Article 35A as it was not added to the Constitution through following the procedure prescribed in the Article 368 of the Indian Constitution. In response, while the J&K Government filed a counter-affidavit and sought dismissal of the petition, the Government of India did not file objections to the petition