Breaking News on J&K’s Article 35(A)

The Supreme Court on Friday again adjourned its hearing on a plea challenging the constitutional validity of Article 35-A, this time until next January. The Article empowers the Jammu and Kashmir assembly to define “permanent residents” who are entitled to special rights and privileges.

The Jammu & Kashmir government and the Centre together on Friday sought postponement of the scheduled SC hearing on petitions challenging the constitutional validity of Article 35A of Constitution until January/February next year, on the ground that the panchayat polls in state would go on till December.

Attorney General (AG) K K Venugopal said a large number of paramilitary forces are being moved into the state for smooth conduct of Panchayat polls and asked that the hearing be deferred as Article 35A evokes strong sentiments and creates law and order problems in the state.

Earlier this week, too, on August 27, a bench of Chief Justice of (India) Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud did not take up the matter, as the petitioner had circulated a letter in the apex court registry seeking adjournment of hearing on the plea.

Lawyer and Delhi BJP leader Ashwini Upadhyay, in a fresh plea, had sought a direction to the central and state governments to declare Article 35A of the Constitution “arbitrary” on the ground that it was contrary to fundamental rights like the right to equality, dignity of women, freedom of speech and expression and the right to life and personal liberty.

Article 35-A, which was incorporated into 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.

It also 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 their heirs.

Before that, on August 6, the apex court had adjourned the hearing on a batch of petitions including the one filed by NGO ‘We the Citizens’, through lawyer Barun Kumar Sinha, till the week commencing today.

It had said that a three-judge bench would decide whether the pleas challenging the Article 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.

The apex court is hearing a batch of pleas seeking quashing of the Article which confers special status to permanent residents of the state.

Political parties, including the National Conference and the CPIM, have 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.

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.

Source : Times of India


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