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All eyes on Supreme Court hearing today

Srinagar, Aug 30: Jammu and Kashmir on Friday would be closely following the Supreme Court hearing of the several petitions against Article 35-A, which gives J&K a special status.

The hearing before the Supreme Court on petitions, challenging Article 35A, is listed at Serial 18, according to the causelist issued by the top court.

Article 35A empowers the Jammu & Kashmir legislative assembly to define who is classified as a permanent resident of J&K, and confer rights and privileges upon them, while excluding any person from all other states from such benefits.

The government of J&K has already made it clear that it will seek the adjournment of the August 31 hearing of petitions against Article 35-A in the Supreme Court citing ongoing preparations for the upcoming Panchayat and Municipal polls.

Advocate Shoeb Alam, the standing Counsel for J&K in the matter, in a letter to Registrar Supreme Court Wednesday said:  “The undersigned will be seeking an adjournment in the aforesaid matter on 31-08-2018 on account of the ongoing operations for the upcoming Panchayat/Urban local body elections in the state.”

At least five petitions against the Article 35A are listed on Friday and the apex court would “test” whether state of J&K was accorded any special status in the Constitution of India.

“Let these matters be listed in the week commencing 27.08.2018 to test the preliminary arguments of the petitioner,” said Chief Justice of India Dipak Misra, heading a two-Bench, said on August 6.

The matters were actually listed before a 3-member bench also comprising Justice A.M. Khanwilkar and Justice D.Y. Chandrachud. While Justice D.Y. Chandrachud was on leave, the matters were heard by the two-judge bench and came for hearing before the scheduled time of 2 p.m. on the day.

The court had orally observed that it would consider whether Article 35A, which gives special status to the State and people of Jammu and Kashmir, is violative of the ‘Basic Structure’ of the Constitution.

‘Basic Structure’ is a collective term coined by a 13-judge Bench in the historic KeshavanandaBharati case to include a catena of fundamental rights, including the right to equality, non-discrimination, liberty, life and dignity, enshrined and preserved in the Constitution.

Chief Justice Misra explained that since the issue was being heard by a three-judge Bench and one of them is absent, the case should be adjourned.

“The challenge to Article 35A is being heard by a three-judge Bench. The Bench will determine whether the case should be referred to a Constitution Bench. Today, as you see, the other judge is absent and so we have to hear the case another day,” he had addressed the petitioner lawyers who objected to an adjournment.

One of them even complained that J&K was virtually shut down before every Supreme Court hearing. To this, Chief Justice Misra said the challenge is to a provision, Article 35A, which has been implemented for over 60 years and the petitions were filed only in 2014. The case had progressed to the extent of the question of reference by a three-judge Bench to a Constitution Bench.

One of the main writ petitions was filed by NGO We the Citizens, which challenges the validity of both Article 35A and Article 370. It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of J&K was never accorded any special status in the Constitution.