Article 35A case: Hearing deferred by three months

New Delhi: The Supreme Court on Monday deferred its hearing by three months after the Centre informed the court that it had appointed an interlocutor to hold talks in Jammu and Kashmir and proceeding with the hearing of the case would affect the process of dialogue.

Attorney-general K.K. Venugopal, appearing for the Centre, told a three-judge bench of Chief Justice Dipak Misra and Justices A.M. Kanwilkar and D.Y. Chandrachud hearing petitions on validity of Article 35A of the Constitution conferring special status to J&K that the interlocutor had started a dialogue with the stakeholders and pleaded for six months time to file a report.

He said if the court proceeded with the hearing, it would affect the process of dialogue. The bench granted 12 weeks time to the Centre and deferred the hearing till then. The counsel for the petitioners pleaded for referring the issue to a five-judge constitutional bench.

The court was hearing petitions challenging the legality and constitutional validity of Article 35A of the Constitution conferring special status to J&K. Charu Wali Khanna, a Kashmiri Pandit, has challenged the Article as unconstitutional. Counsel Bimal Roy Jad argued that the petitioner, who had married outside her caste and settled outside the state of Jammu and Kashmir, was not entitled to property.

The petitioner said gender bias is writ large on this provision, which is also violative of Article 14 of the Constitution. She has 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 the state and does not leave the state for permanent residence. The same was given 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.

The Article, which was added to the Constitution by a Presidential Order in 1954, accords special rights and privileges to the natives of J&K, and empowers its legislature to frame any law without attracting a challenge on grounds of violating the right to equality of people from other states or any other right under the Indian Constitution.

In 2014 NGO ‘We the Citizens’ has questioned this Article as it violated the basic structure of the Constitution. The PIL said a combined reading of Article 3 & 4 would show that the state of Jammu & Kashmir is integral part of union of states and the laws made under Article 2, 3 & 4 shall be applicable on the state of Jammu & Kashmir also. 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 Article i.e. Article 35 A by way of Constitution (Application to Jammu & Kashmir) Order 1954 by the President of India exercising power under Article 370 (1) (d) of the Constitution of India. A reading of Article 370 of the Constitution of India would show that there IS no power conferred on the President of India to amend the (Laws made by the J&K government under Article 35A bars all the Indians— other than the original inhabitants of the state—from acquiring immovable property anywhere in J&K, obtaining jobs under the J&K Government, settling in the state and availing the state-sponsored scholarship schemes.).

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.