Indian top court lacks power to hear Article 35A case: Expert

Srinagar, September 02 (KMS): In occupied Kashmir, a book authored by a former Chief Justice of India reveals that Article 35A flows from an agreement in 1954 between India and Pakistan, which has led some legal experts to question Supreme Court’s jurisdiction to hear petitions seeking abrogation of this provision.

Justice Dr AS Anand was the first person from occupied Kashmir who became the Chief Justice of India. His book, ‘Constitution of Jammu and Kashmir, its Development and Comments’, links Article 35A to Pakistan.

According to the book, it was in accordance with the agreement between the representatives of India and Pakistan that the J&K legislature would have the power to make special provision for the permanent residents of the territory. “It was deemed necessary that some provision be made in the Constitution to cover the case. Accordingly Article 35A was inserted by section 2 (4) (j) of the order of 1954,” reads the book. The foreword to the book was written by former Chief Justice of India MN Venkatachaliah.

“When Article 35A is the outcome of an agreement between representatives of India and Pakistan it amounts to Act of State over which the Supreme Court of India lacks jurisdiction,” senior lawyer and an eminent legal expert, ST Hussain told media in Srinagar. He said that since Article 35A was the result of an agreement between government of India and government of Pakistan, this fact has vital bearing on the writs challenging the validity of Article 35A of Indian Constitution pending before the Supreme Court.

The eminent lawyer said the “Supreme Court lacks inherent jurisdiction to hear the matter in view of the Privy Council judgment reported in 1859, Vol 1, Moors Privy Council Cases”. “The judgment of Privy Council that the Act of State cannot be challenged has attained finality, and according to Oppenheim, an author of International Law, it has become a core principle of International Law and the Supreme Court of India has also accepted the principle,” Hussain said.

It is an established law, he said, that an agreement between India and Pakistan amounts to an Act of State, so the “Supreme Court of India cannot adjudicate or decide the validity of the “Act of the State”. “If the Supreme Court lacks inherent jurisdiction, it cannot have consequential jurisdiction also to refer the matter to the five judge Constitution bench,” the senior lawyer said.

“All proceedings before the Supreme Court are in the eye of law void and non-est [factum],” he added. “Hence the core question in any dialogue between India and Pakistan to be continued would include the assurance given by the Government of India to the Government of Pakistan that no demographic alteration of population be permitted, this one question has assumed the importance of the core and key question,” Hussain said.

As many as six petitions stand filed in the Indian Supreme Court against Article 35 A, with the lead case filed in 2014 by a little known Delhi-based NGO, ‘We The Citizens’. In the backdrop of protests against abrogation of Article 35A, a three-judge bench of the apex court on Friday deferred the matter till second week of January 2019.


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