Sunday, July 22, 2018
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How To Defend Article 35 A -- a ‘ moment ‘ for the legal fraternity

By B L Saraf

It is understandable that political parties in the State and a good section of JKian civil society who feel agitated about the challenge Article 35A is facing in the Apex Court should lodge a public protest to express their concern . Otherwise also , to come out on the streets , even for no worthwhile cause , is a trick integral to the trade a politician is engaged in . There are many ways to defend a cause . If the cause is a mix of politico-legal ingredients - as Article 35 A indeed is - it is better to split it into two , for an effective defense and defend it by the tools appropriate to the each ingredient .

Politicians are at the job . Lawyers in Kashmir have also stepped in . Kashmir High Court Bar Association has come out on the streets to lodge a protest . On a cue , District Bar Associations in Valley , too , have a publically protested at the respective head quarters . Apparently, there is nothing wrong in show of public solidarity with a cause which is so dear to a large section of the State’s populace . However , lawyers being best suited to defend the material aspect of the issue it is desirable for them to take to the tools they are best at and use them to show their concern . Article 35 A is being tested at the touchstone of law ; so it comes naturally to the legal fraternity to have a recourse to the available legal tools and prove that this Constitutional provision has stood the test of time : that today its need is so paramount as never before .

This is not the first time that Articles 35A and 370 have come under judicial scrutiny at the highest level . On all these occasions , one of them rather recently , the verdict has come in favor of their retention in Constitution of the land . True , this time challenge is more focused and political environment at the Centre is not too keen to retain them. But then we have some fine legal minds in Srinagar Bar Association –as indeed we have them in Jammu Bar also – who can compete with the best in country . We trust they are on the job . The need of the hour is to analyze the past decisions and put up an appropriate response before the Apex Court .

I recall 1986 when I was in the Registry of Jammu wing of our High Court ; Sushila Sawhney and other allied cases happened to be pending consideration there . These cases ( now decided ) pertained to the status and inheritance rights of resident females married to the non –resident males . Late Miwaiz Moulvi Farooq and Abdul Gani Lone keenly followed proceedings of the cases . May be , someone in the civil society emulates them , here .

Political mobilization is , certainly , required to impress up on the political authorities who are in the saddle at New Delhi that it is for them to take up a stand in consonance with the commitments made to the people of the State when they joined fate with the Indian Dominion . Effort in this regard should be pan- state and free from parochial or a sectarian rhetoric .

More than anyone else , lawyers may know it better that public pressure seldom works in the judicial arena . We have just seen how a judge of sub-ordinate court in Panchkula Haryana , unmindful of presence of lakhs of the devotees gathered around his court , convicted a ‘ god-man ‘ of an offence which may entail his long incarceration.

If only they would care to know and stop seeing everything from a seditious angle , there is a lot to cheer for the “nationalists ‘ in the exercise . This is one occasion , which will rarely come again , where both mainstream and the separatist politicians are actively converging to save a legal provision which is found only in the Constitution of India . There is nothing seditious in Article 35 A.

(The author is a Former Principal District & Sessions Judge. Feedback- [email protected] )

(Disclaimer: The views, observations and opinions expressed in above write up of Scoop News are strictly author's own. Scoop News does not take any onus or liability for the veracity, accuracy, validity, completeness, suitability of any of information in the above given write up. The information, facts or figures appearing in the write up in no way manifest the position, standpoint or stance of Scoop News and the Scoop News does not assume any encumbrance or answerability of the same. All disputes are subject to the exclusive jurisdiction of competent Courts and Forums in Jammu City Only)

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