SC to Take ‘In-Chamber’ Decision on lea Challenging Article 35-A

SC had deferred till January the hearing on the pleas challenging the constitutional validity of Article 35 A.

The Supreme Court on Tuesday, 22 January, said it would take an "in-chamber" decision on listing of a petition challenging the constitutional validity of Article 35-A, which provides special rights and privileges to permanent residents of Jammu and Kashmir.

Advocate Bimal Roy had mentioned the matter before the bench headed by Chief Justice Ranjan Gogoi and also comprising Justices L Nageswara Rao and Sanjiv Khanna.

He sought urgent hearing of the petition, filed by NGO 'We The Citizens', saying the court had earlier ordered listing of the matter in the second week of January.

In August, the apex court adjourned hearing on a batch of petitions challenging Article 35 A till January this year, after taking note of submissions of the Centre and the state government that there was a law and order problem in the state.

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.

The apex court had on 31 August deferred till January the hearing on the pleas challenging the constitutional validity of Article 35 A, which provides special rights and privileges to natives of Jammu and Kashmir, after the Centre and the state said that polls to local bodies polls there would go on till December.

Article 35 A 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 right over property, also applies to her heirs.

The Article was incorporated in the Constitution in 1954 by an order of President Rajendra Prasad on the advice of the then Cabinet headed by Jawaharlal Nehru.

In the previous hearing, a lawyer had given an illustration and said that if a native woman of the state married an outsider, she loses several rights, including property rights, in the state, but if a man marries a Pakistani woman, he and his spouse get all rights.

Additional Solicitor General Tushar Mehta, however, had agreed to the contention that Article 35A and certain aspects needed to be debated upon and said, "It can't be denied that there is an aspect of gender discrimination in it (Article 35A).

On 6 August, the apex court had said that a three-judge bench would decide whether the pleas challenging Article 35A should be referred to a five-judge constitution bench for examining the larger issue of alleged violation of the doctrine of basic structure of the Constitution.

Several petitions including by political parties like the National Conference and the CPI-M, have also 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.

An NGO, 'Ikkjut Jammu', has also filed a plea seeking quashing of the provision. It has said that Article 35-A furthers the "two nation theory which is against the theory of secularism".

The state government, while defending the Article, had cited two verdicts of 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.