5-judge bench to decide on J&K special status

New Delhi: The Supreme Court on Monday indicated that a five-judge Constitution bench will hear petitions challenging the legality and validity of Article 35A of the Constitution, which confers a special status to Jammu and Kashmir.

A Bench of Justices Dipak Misra and A.M. Kanwilkar gave this indication to the counsel for petitioner, Charu Wali Khanna, a Kashmiri Pandit woman, challenging the Article as unconstitutional.

Counsel Bimal Roy had argued the petitioner who married outside her caste and settled outside J&K was not entitled to property and even her children can’t get the property. Giving examples of Farooq Abdullah and Omar Abdullah, the counsel said though they married from outside J&K, they are entitled to have property but only women are denied this privilege. Gender bias is writ large on this provision, which is also violative of the Article 14. She challenged the notification dated April 20, 1927, issued by Maharaja Bahadur of Kashmir, which takes away the right of a wife or widow otherwise available to them as state subject unless she resides in that state and does not leave it for permanent residence. The same was given the Constitutional sanction by Article 35A of the Constitution of India read with Section 6 of the Constitution of J&K.

It is the petitioner’s case that two provisions are violative of Articles 14, 15 and 16 of the Constitution.

When additional solicitor general P.S. Narasimha, appearing for the Centre, pointed out a similar petition filed in 2014 by NGO ‘We the Citizens’ has been referred to three judges Bench, Justice Misra observed “ultimately it will have to go before a five-judge Constitution bench to decide whether the Article violates basic structure or there is procedural violation.”

The bench directed the matter to be tagged with this petition and listed for hearing on August 29.    

The petitioner said: “Despite being a Kashmiri Pandit by origin, the state does not recognise me as its citizen. I desired to build a home in J&K, but I could not do so. Article 35A allows the J&K legislature to define the list of ‘permanent residents’, who are eligible to vote, work for the state, own land, secure, public employment and college admissions etc.” Non-permanent residents are denied these rights.”

In July, attorney general K.K. Venugopal told a bench of CJI J.S. Khehar that it was a “very sensitive” matter and that this would require a “larger debate”. The PIL has sought Article 35A in the Constitution 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. Challenging the addition of new

The petitioner contended that the J&K government, under the guise of Article 35A and Article 370, which grants special autonomous status to the state, has been discriminating against non-residents who are debarred from buying properties, getting a government job or voting in the local elections.