Day 1 Arguments

Constitutionality of Article 35A

August 31st 2018


Today’s hearing began around 11.45 A.M.

Lawyers on both sides called for the hearing to be postponed, fearing unrest in Jammu and Kashmir. The Court posted the hearing for after the Panchayat Polls, to the second week of January, 2019.

This case is about whether Jammu and Kashmir has, in the way it defines Permanent Residents, infringed upon Article 14 of the Constitution, equality before the law. The three-judge bench headed by CJI Dipak Misra and composed also of Justice AM Khanwilkar and DY Chandrachud is presiding over the hearing.

Mr. Tushar Mehta appearing for Jammu and Kashmir and Attorney General K.K. Venugopal representing the Union jointly sought the deferral of the hearing. They argued that hearing it now might lead to civil unrest in Jammu and Kashmir and pleaded with the Court to wait until after the conclusion of the Panchayat Polls in December.

Mr. Ranjit Kumar urged the court to hear the matter now. Mr. Kumar opposed the postponement plea by saying that there is no legal basis for deferring hearing a constitutional question because of upcoming Panchayat polls.

He represents second and third generation Kashmiri residents who are claiming that both their fundamental right to seek admission or public employment in the State and their right to property are violated by Article 35A.

Mr. Kumar further argued that the constitutional validity of the 1954 Presidential Order which introduced Article 35A is under dispute.

CJI Misra enquired as to why the validity of the Presidential Order was being challenged after sixty years. CJI Misra was suggesting that the Presidential Order has gained validity by nature of being unchallenged for sixty years. Mr. Ranjit Kumar questioned this reasoning. He raised how the Court recently assessed the validity of Sabarimala religious customs, despite the fact that they have been in place for several centuries.


(The Report relies on inputs by Ms. Anu Shrivastava and Mr. Ayush Puri)