SC hints at sending petitions against Article 35A to Constitution Bench

New Delhi: Amid growing political unease in Jammu and Kashmir over alleged attempts to do away with Article 35A of the Constitution, the Supreme Court on August 14 hinted at sending petitions challenging the controversial provision to a Constitution Bench for a definitive finding on its validity.
Added to the Constitution through a Presidential Order in 1954, Article 35A gives special rights and privileges to permanent residents of Jammu and Kashmir and debars rest of Indians from acquiring immovable property, obtaining state government jobs and settling in the state.
Petitioner Charu Wali Khanna alleged that it also discriminates against women.
“Section 6 of the Jammu and Kashmir Constitution restricts the basic right of women to marry a man of their choice by not giving the heirs any right to property if the woman marries a man not holding the permanent resident certificate.
“Her children are denied a permanent resident certificate thereby considering them illegitimate—not given any right to such a woman’s property even if she is a permanent resident of Jammu and Kashmir,” Khanna alleged in her petition.
A Bench headed by Justice Dipak Misra tagged Khanna’s petition with another already pending in the top court and said now it would be heard by a three-judge Bench.
“If this matter requires to be heard by a five-judge Constitution Bench, the three-judge Bench may refer it to a Constitution Bench,” Justice Misra said.
The petitioner alleged that if a woman marries a person outside Jammu and Kashmir, then according to Article 35A, she loses property rights as well as employment opportunities in the state.
Also, a non-permanent resident certificate holder can vote in Lok Sabha polls but he/she can’t vote in local elections in the state.
The top court had on July 17 referred to a larger Bench another petition challenging Article 35A of the Constitution.
A Bench headed by Chief Justice of India J.S. Khehar had sent it to a three-judge Bench after Attorney General K.K. Venugopal said it was a “very sensitive” matter which would require a “larger debate”.
Interestingly, the Centre has been shying away from filing its response to spell out its stand on Article 35A.
The Attorney General had then told the Bench that the government didn’t want to file its affidavit in response to the petition filed by Delhi-based NGO ‘We the citizens’, which has challenged the constitutional validity of Article 35A on the ground that the President could not have amended the Constitution by an Order in 1954 and it was to be a temporary provision.
The Supreme Court is also seized of at least one petition challenging the validity of Article 370 of the Constitution that confers special status to Jammu and Kashmir.
But in its affidavit, the state government has defended Article 35A terming it a permanent feature of the Indian Constitution.
The 1954 Presidential Order granting special rights to permanent residents of the state had been recognized, accepted and acted upon since its enactment, it added.

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