New Delhi: The petitions challenging Article 35A of the constitution, which the Supreme Court deferred hearing on August 31, are unique as their very listing and the likelihood of their hearing by the court makes Jammu and Kashmir very tense. The provision enables the state government to create a class of “permanent residents”, and confer on them special rights and privileges in public employment, acquisition of immovable property, settlement, and access to scholarships in education. The petitioners have challenged the provision on various grounds, including gender disparity and absence of endorsement by parliament. The apex court, which was at one stage keen to hear the petitions and dispose of them before the tenure of the current Chief Justice of India, Dipak Misra, ends on October 2, found the Centre seeking an adjournment on August 31. The bench of CJI Dipak Misra, Justice A.M. Khanwilkar, and Justice D.Y. Chandrachud was more than willing to agree to the Centre’s suggestion that they should be heard only next year after the conclusion of the panchayat and municipal polls in the state. The matter now stands adjourned to the second week of January 2019, well after the Justice Misra’s term is over. To the agitated counsel of the petitioners, who urged the court not to adjourn the case, the CJI asked what the urgency was when there has been no challenge to the provision all these years since its insertion in the constitution in 1954. When senior counsel and former solicitor general, Ranjit Kumar, representing one of the petitioners, countered the CJI, asking what was the urgency in hearing the petitions challenging the restrictions on menstruating women from worshipping at Sabarimala, even though the practice remained unchallenged for 300 years, Justice Misra underlined the distinction between the two, as in Article 35A, the challenge was to a Constitutional provision, inserted through a presidential order. Interestingly, similar concerns over possible unrest in Kerala in the event of the court striking down the restriction on entry of menstruating women into the Sabarimala temple, were expressed by counsel arguing for respondents during the hearing of the Sabarimala case. The constitution bench, which heard the matter, did not respond to such concerns. But the CJI’s explanation on Friday failed to convince the petitioners. They claimed that many stood excluded from getting into professional colleges in the state despite living in the state for 60 years, and that Kashmiri women who marry non-Kashmiris are prevented from buying property because of Article 35A. There were five writ petitions before the court. The petition filed by We the Citizens, an NGO, is the lead petition, having been filed in 2014. The second is the one filed by West Pakistan Refugees Action Committee Cell-1947, which was filed in 2015. The third was filed by one Dr. Charu Wali Khanna, in 2017. The remaining two have been filed by Kali Dass and Radhika Gill in 2017 and this year respectively. Both the Centre and the state government have been arraigned as the respondents.Also read: Time to Clear Up the Fallacies Around Kashmir’s Article 35AIt is not as if the schedule of the panchayat elections in the state of Jammu and Kashmir was not known to the Centre earlier. The real reason for the Centre’s seeking an adjournment appears to be that it did not anticipate the scale of protests in the state which greeted the listing and the preliminary hearing of the case in the Supreme Court earlier. On August 6, according to many reports, life in the Kashmir valley came to a standstill due to the shutdown called by separatists and the mainstream regional parties against the hearing of the case.Today, Justice Misra asked the advocates in the state of Jammu and Kashmir not to go on strike, as they did earlier in anticipation of the apex court’s hearing of the case.Previous hearingsOn July 17, 2017, Attorney General K.K. Venugopal told the two-judge bench of the then CJI, J.S. Khehar and Justice D.Y. Chandrachud that the Centre has taken a conscious decision not to file any counter affidavit in this case, because the issues which are raised for adjudication, are pure questions of law. Following this, the bench concluded that pleadings in the case “shall be deemed to be complete”. The bench then directed the listing of the case before a three judge division bench, after six weeks “for final disposal”, giving liberty to the counsel to file additional documents in the meantime. On October 30, 2017, when the case came up for hearing before a three judge bench led by the CJI, the Centre sought an adjournment of the hearing for 12 weeks. On May 14 this year, the bench noted in its order: “Let the matter be listed at 2 p.m. on August 6, and pleadings from all angles shall be completed in the meantime.”On August 6, as Justice Chandrachud was absent, the two judge bench of the CJI and Justice Khanwilkar, who heard the counsel, noted: “Let these matters be listed in the week commencing 27.08.2018 to test the preliminary arguments of the petitioner.”Today, both the Centre and the state of Jammu and Kashmir, sought adjournment of the case, because of the implications for law and order situation during the panchayat elections, a ground which could have been obvious on August 6 too. The AG submitted to the bench that a large number of paramilitary forces are deployed in the state for the purpose of elections, and in the event the court hears the matter, the law and order situation will be difficult to contain, reports Bar and Bench. Also read: Sangh Outfit Challenge to Kashmir’s Special Status Could Change State’s DemographyWhen the additional solicitor general, Tushar Mehta, representing the state of Jammu and Kashmir, told the bench the panchayat elections will be held in phases, and are scheduled to end in December, the bench was of the view that it would not like to precipitate the matter ahead of the elections. Mehta also emphasised that the elections to the local bodies ought to be held on schedule, as otherwise the Finance Commission’s grant of over Rs 4,500 crore would lapse, reports LiveLaw. It will now depend on the next Chief Justice of India, succeeding Justice Dipak Misra, to decide the composition of the bench to hear the case in January, if at all the Centre is keen on the hearing. Given the fact that a state like Jammu and Kashmir is likely to be tense on the eve of every hearing of the case by the apex court, the prospects of the case being heard and concluded at all appear to be very grim. The adjournment of the case, on the ground that its hearing by the bench even on the question of its reference to a constitution bench would worsen the law and order situation in the state, is likely to show the court in a poor light. In a catena of cases, the Supreme Court has refused to avoid hearing a case because it would involve dealing with political issues, and had shown a willingness to rise above politics and other extraneous factors which would influence public opinion outside the court so that it could consider and resolve disputes objectively. Today’s decision has set a bad precedent in that it has willingly made its cause list amenable to the influence of non-state actors, who threaten violence and unrest, apprehending an outcome unfavourable to them. The Centre’s vacillation over the issue is, of course, a contributory factor for the court’s reluctance to hear the matter. If the court were to conclude, after the hearing, that the petitions were without merit because of the state’s unique position in India’s federal set-up, it would have been a vindication of the people of the state, and also the majesty of the court.The protests in the state against the hearing of the case stem from genuine concerns that the court may be deprived of the case for retention of Article 35A in view of the tacit support of the Centre and state government to the petitions, especially after the exit of the PDP-led government.