After PM’s assurance, Centre should support 35A in SC: Zaffar Shah

''Else CM’s assertions are meaningless''

D A RASHID
Srinagar, Publish Date: Aug 12 2017 11:58PM | Updated Date: Aug 12 2017 11:58PM
After PM’s assurance, Centre should support 35A in SC: Zaffar ShahFile Photo

Prime Minister’s assurance to Chief Minister Mehbooba Mufti in New Delhi that agenda of alliance will be adhered to imply that New Delhi should now support state’s stand on Article 35A in the Supreme Court, else the CM’s assertions are meaningless, said senior lawyer Zaffar Shah.

“If the Prime Minister has said that agenda of alliance will be adhered to, as claimed by the Chief Minister, it should mean that the Government of India has agreed to file affidavit in the apex court to oppose the writ petition,” Shah told Greater Kashmir.

But, he said, if no affidavit is filed it would mean that the meeting has been meaningless and it would also mean that PDP should no longer rely on its coalition partner BJP.

“Then the agenda of alliance will become only an eye wash without either of the parties attaching any importance to it. The PDP will have to revisit its alliance with BJP in that case,” Shah said.

On the petition challenging Article 35A in Supreme Court, legal experts maintain that inclusion of the provision - that grants protection to state subject laws - in Indian Constitution flows from Delhi Agreement as well as Article 370 and Jammu and Kashmir government should consult expert authorities on International Law for an effective pleading before the Supreme Court.

“The government of Jammu and Kashmir be well advised to consult some eminent authorities on the subject of International Law as it (Article 35 A challenge) pertains to the rights of the people of a state that have been referred by Government of India to be determined by United Nations Security Council,” senior Advocate and constitutional expert S T Hussain.

He said as such human rights organizations recognized by the United Nations Security Council have an active role to play and safeguard the civil rights of people of the Jammu and Kashmir.

“So far as Jammu and Kashmir is concerned one has to accept the reality that any judgment of the Supreme Court will only have validity within the territory of India and it will have to yield to the principles of international law if and when invoked by an aggrieved party”.  

“Thus, any judgment of Supreme Court of India abrogating Article 35 A or Article 370 will have only a tentative value and cannot be definitive regarding rights of people of Jammu and Kashmir with regard to their hearth and home, landed property and natural resources,” Hussain explained.

According to him abrogation of Articles 35A and 370 would raise question of human rights keeping in view the historical background and circumstances which compelled first Prime Minister of India to refer the matter to Security Council and the subsequent statements of Indian delegation in the Security Council pointing out that the framing of the J&K Constitution was for administrative purpose.

The entire question of the civil rights of people of Jammu and Kashmir have to be viewed in the context of the international law, he said, adding several precedents of International Court of Justice have elaborately explained that the rights of the people can be enforced through international agencies.

Keeping in view the stated position, Hussain said Indian lawyers may not be adequate to formulate a balanced viewpoint for the guidance of the state.

“It is the Union of India which has invoked the jurisdiction of UNSC so the entire question is to be revisited in a glaring light of the principles of international law.” 

Why Jammu and Kashmir government can’t seek international legal assistance in the matter when government of India did so some years back in Atlantique, a war plane of Pakistan that was shot down over Runn of Kutcch by Indian Air Force.

“When Pakistan invoked jurisdiction of the International Court of Justice for compensation, government of India consulted Prof Brain O V, an eminent authority on international law and ultimately succeeded to convince the International Court of Justice that the complaint of Pakistan should not be entertained in view of the position of the law of international conventions,” Hussain said.

As the matter is of immense significance, he argued, Jammu and Kashmir government should consult international lawyers who are well versed in international law. 

Advocate Reyaz Khawar said Article 35A is neither discriminatory nor it violates Article 14 of Constitution of India.  

“Article 14 of the Indian Constitution allows reasonable classification and Jammu and Kashmir State makes itself class as there is Article 371-A which protects the social, customary and religious practices of Nagaland and their ownership rights on their land and 371-D for Andhra Pradesh which gives the state special powers in some matters,” Khawar said.

“The inclusion of 35A flows from Delhi Agreement of 1952 and Article 370 and it was debated in the parliament and Jawahar Lal Nehru told the parliament that state subject laws of the state, as well as scholarship and employment matters need to be protected to address the apprehensions of Kashmiri leadership and to protect these laws parliament and government of India needs to devise a large mechanism.”

He said it was on the instance of parliament and GoI that the President of India inserted Article 35A in the Constitution. “The Delhi Agreement was ratified by Constituent Assembly of Jammu and Kashmir,” Khawar said. “Article 35A grants no new rights to J&K but gives only a protection to the state subject laws, Land Alienation Act and other connected laws.”  

He said as the parliament couldn’t legislate about the state subject laws, scholarship and employment matters as such the President deriving authority from Article 370 incorporated Article 35A in the Constitution to safeguard the state subject laws.

“The Article 35A was added by the President of India through a presidential order of 1954 in exercise of powers conferred by clause 1 of the Article 370 with the concurrence of Jammu and Kashmir Government,” he said. Notably, Article 35A was extended to J&K through ‘Constitution (Application to Jammu and Kashmir) Order issued by President Rajendra Prasad on May 14, 1954. It was specifically devised to grant protection to state subject laws that had already been defined under the Maharaja’s rule and notified in 1927 and 1932. 

 

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