Article 35-A: Supreme Court hints it is open to examining validity

New Delhi: The Supreme Court on Monday deferred its hearing on a batch of petitions challenging the validity of Article 35-A of the Constitution that provides special status to the State of Jammu and Kashmir while hinting that it will consider whether the Article is violative of the “basic structure” of  Constitution.

A three-judge bench will now hear the matter on August 27. A bench of Chief Justice Dipak Misra and Justice A.M. Kanwilkar adjourned the hearing observing that being a three-judge matter it could not be heard in the absence of Justice D.Y. Chandrachud who was on leave on Monday.

One of the petitioner challenging Article 35-A is Charu WaliKhanna, a Kashmiri Hindu belonging to the Pandit community who married outside the state, who has questioned the validity of the article that grants permanent residents in Kashmir special rights and privileges. Those who are not permanent residents do not have the right to buy property in Kashmir, work for the state government or vote in local elections and avail state-sponsored scholarship.

A lawyer herself, Ms WaliKhanna said she decided to file the petition because the article, passed by a presidential order in 1954, runs counter to India’s inheritance laws giving women equal rights, and the constitutional right to equality.

The CJI told attorney-general K.K. Venugopal and additional solicitor-general Tushar Mehta, who appeared for J&K government, that first a three-judge bench needs to determine whether this matter is required to be referred to a five-judge bench to examine whether Article 35-A violated the basic structure of Constitution.

The CJI was reacting to the submissions of the AG and the ASG when they sought adjournment of hearing on the ground that Panchayat election process is underway.

As Mr Mehta submitted that J&K is virtually shut down because of the hearing of this matter, the CJI observed, “Article 35-A was not introduced in the Constitution yesterday. This challenge comes after 60 years. We will hear petitioners, the A-G and to some extent J&K government, which had a minimal role.”

The state government justified the provision and said that Article 35-A had become a permanent feature of the Indian Constitution and that the 1954 Presidenial Order granting special rights to permanent residents of the state has been recognised, accepted and acted upon since its enactment and cannot be challenged now.

The matter was raised in a public interest litigation (PIL) in 2014 by a Delhi-based NGO We the citizens, against the continuance of the special rights of the state’s residents.

The PILs sought Article 35-A to be declared unconstitutional, contending that the President could not have amended the Constitution by the 1954 order and it was supposed to be a temporary provision.

They contended that the J&K government, under the guise of Article 35-A and Article 370, which grants special autonomous status to the state, has been discriminating against non-residents.

It was submitted by some petitioners that more than 4,000 people who belong to the second, third and fourth generation of those who had moved from Gurdaspur and Amritsar in Punjab to settle in the Jammu region were suffering due to alleged discrimination.

The petitioners were born in the J&K and since their birth they have been permanently residing and living in the state but they have been denied the right to seek admission in state-funded higher technical educational institutions and apply for government jobs.