SC adjourns hearing on pleas challenging Article 35-A

The Supreme Court on Monday adjourned hearing on a batch of pleas challenging the constitutional validity of Article 35-A, which gives special rights and privileges to the people of Jammu and Kashmir, saying one of the three judges on the bench was not present.

A bench comprising Chief Justice Dipak Misra and Justice A M Khanwilkar said the matter has to be heard by a three-judge bench and Justice D Y Chandrachud, a part of the bench, was not in court.

The bench also said a three-judge bench has been hearing the case and will consider whether it has to be referred to a larger bench.

The apex court has listed the matter for hearing in the week commencing August 27.

CJI Misra observed that the apex court has to consider whether Article 35-A goes against the basic structure of the Constitution.

Article 35-A, which was incorporated in the Constitution by a 1954 Presidential Order, accords special rights and privileges to the citizens of Jammu and Kashmir and bars people from outside the state from acquiring any immovable property in the state

It also denies property rights to a woman who marries a person from outside the state. The provision, which leads to such women from the state forfeiting their rights over property, also applies to their heirs.

“Once you have challenged the constitutional validity of Article 35-A, it has to go before a Constitution bench. A three-judge bench will determine it. A three-judge bench has been dealing with it,” the CJI said.

“A three-judge bench will consider whether it has to go before a Constitution bench.”

The Jammu and Kashmir government had on August 3 moved the apex court seeking adjournment of Monday’s hearing on petitions challenging the validity of Article 35-A, citing the upcoming local body elections.

During the hearing today, the counsel appearing for the petitioners challenging the validity, opposed the state government’s move seeking adjournment.

The local body elections in the state are likely to be held in September.

Several interlocutory petitions have been filed in support of Article 35-A by various individuals and civil society groups seeking continuance of special status to the state.

The apex court is hearing a batch of petitions in the matter, including the one filed by the NGO We the Citizens, seeking quashing of the article, which confers special status to permanent residents of Jammu and Kashmir.

Political parties, including the National Conference and the CPI-M, have moved the Supreme Court in support of Article 35-A that empowers the state assembly to define “permanent residents” for bestowing special rights and privileges to them.
The NC had moved the apex court in support of the Article, saying it serves as an important link between the state and the Union and its people and maintains a fine balance of constitutional federalism.

On July 31, Communist Party of India-Marxist’s J-K unit had said in its petition that it was of the unequivocal opinion that the Article shall in “no circumstance be annulled, modified or repealed”.

On May 14, Attorney General K K Venugopal had informed the apex court that the Centre’s interlocutor for Jammu and Kashmir is currently discussing with all stakeholders the “sensitive” issues relating to the challenge to Article 35-A.

He had said the interlocutor, appointed by the Centre to hold talks with stakeholders to resolve the Kashmir issue, was discussing these issues and it was an “ongoing process”.

The state government, while defending the Article, had 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 to pass constitutional 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.

It empowers the state legislature to frame any law without attracting a challenge on the grounds of violation of the right to equality of people from other states or any other right under the Constitution.

The apex court had on August 14 last year said a Constitution bench may examine whether Article 35-A was gender-biased and violative of the basic structure of the Constitution.

The court while hearing a plea earlier by Charu Wali Khanna, a Kashmir resident, had indicated that the issue may be dealt with by a five-judge bench if the Article violated basic structure of the Constitution or was ultra vires. It had tagged the plea challenging Article 35-A with a similar petition that is pending for hearing by a three-judge bench.

The state government had earlier said the issue has already been “prima facie settled” by a full bench of the high court in its verdict in 2002.

In the case, the high court had, by a majority view, held that a daughter of a permanent resident of Jammu and Kashmir marrying a non-permanent resident will not lose the status of a permanent resident.