In keeping with five-judge Constitution Bench judgments, the three-judge bench of the Supreme Court can dismiss pleas against Article 35A, or refer the question of law to a Constitution Bench, say legal experts.
“This matter (Article 35 A) was directed by Chief Justice to be listed before three judges. These three judges are bound by three Constitution Bench judgments of Supreme Court which have upheld the Constitutional application order of 1954,” Kashmir Bar Association president, advocate Mian Abdul Qayoom told that the three judge bench “cannot take a contrary view of the five judge bench judgments and the only option before the court is to dismiss the pleas”, Qayoom said.
Because the Chief Justice, he added, has already exercised his power by listing the case before three judge bench, it “cannot refer the case to five judge bench”.
The Bar president said Article 35A was incorporated in the Constitution by a 1954 Presidential Order and it is not legally possible to do away with this constitutional provision after 64 years.
Senior leading lawyer, Z A Shah also said the three-judge bench can dismiss the petition but opined that it can also be handed to a larger bench for adjucation.
“The court can refer the question of law to a constitution bench which means if a controversy has not previously been resolved such controversy in a question form can be referred to the larger bench,” Shah said.
“The court can take a different view in the matter in view of its subsequent decisions, more so those relating basic feature of Constitution of India.”
Shah said while taking up the applications seeking intervention, the court can allow the interveners to participate in the proceedings or refuse their intervention.
“The Court can grant opportunity to government of Jammu and Kashmir for filing detailed reply. The court can split the petitions and decline to decide them by a common order,” he said.
Jammu and Kashmir government has not yet filed a detailed reply to the main petition.
As many as five petitions stand filed in the Supreme Court against Article 35A, with the lead case filed in 2014 by a little known Delhi-based NGO, ‘We The Citizens’.
One more petition challenging constitution of Jammu and Kashmir was filed on Monday.
Besides these cases, a Special Leave Petition is also pending disposal before the SC that was filed after Delhi High Court dismissed the appellant’s plea against Article 370.
Under Article 35A, the J&K legislature is empowered to define permanent residents of the state and grant special rights and privileges to them.
In 2014, ‘We The Citizens’ filed a writ petition in the Supreme Court seeking abrogation of the Article 35A on the ground that it was not added to the Constitution 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.
In its defence of the Article, the J&K government has cited two verdicts by the Constitution benches of the Supreme Court in 1961 and 1969, which had upheld the powers of the President under Article 370(1)(d) of the Constitution of India to pass such orders.
The Article was incorporated in the Constitution in 1954 by an order of president Rajendra Prasad on the advice of the then Jawaharlal Nehru Cabinet.