New Delhi, October 30
The Supreme Court on Monday put off its hearing on petitions challenging the validity of Article 35A of the Constitution — which gives special rights and privileges to permanent residents of Jammu and Kashmir — by three months after the Centre said it intended to hold negotiations with various stakeholders in the state.
Attorney general KK Venogopal told a three-judge Bench headed by Chief Justice of India Dipak Misra that the central government had appointed Dineshwar Sharma as an interlocutor and requested it to adjourn the matter for six months.
If the court continues with the hearing, it might affect the ongoing dialogue process, the Attorney General said.
On behalf of one of the petitioners, advocate Barun Sinha submitted that the issue of challenge to the constitutional validity of the Article 35A should be referred to a Constitution Bench.
The Bench, however, simply adjourned the matter for three months.
This is the second time that the case has been adjourned without any hearing on merits. On August 25, the a Bench headed by CJI Misra's predecessor JS Khehar had acceded to a request made by the Centre and the Jammu and Kashmir Government to defer hearing on petitions against Article 35A and take it up only after Diwali.
The deferment of hearing on the contentious issue is likely to bring tempers down in the Kashmir valley where separatist leaders has on Sunday exhorted people to launch a mass agitation if the Article 35A was done away with.
Amid growing political unease in Jammu and Kashmir over alleged attempts to do away with Article 35-A , the Supreme Court had on August 14 hinted at sending petitions challenging the controversial provision to a Constitution Bench for a definitive finding on its validity.
Added to the Constitution through a Presidential Order in 1954, Article 35A gives special rights and privileges to permanent residents of Jammu and Kashmir and debars rest of Indians from acquiring immovable property, obtaining state government jobs and settling in the state.
Petitioner Charu Wali Khanna has alleged that it also discriminates against women.
“Section 6 of the Jammu and Kashmir Constitution restricts the basic right of women to marry a man of their choice by not giving the heirs any right to property if the woman marries a man not holding the Permanent Resident Certificate. Her children are denied a permanent resident certificate thereby considering them illegitimate — not given any right to such a woman's property even if she is a permanent resident of Jammu and Kashmir,” Khanna alleged in her petition.
The petitioner alleged that if a woman marries a person outside Jammu and Kashmir, then according to Article 35A, she loses property rights as well as employment opportunities in the state.
Also, a Non-Permanent Resident Certificate holder can vote in Lok Sabha polls but he/she can't vote in local elections in the state.
Interestingly, the Centre has been shying away from filing its response to spell out its stand on Article 35A. The Attorney General had then told the Bench that the government didn't want to file its affidavit in response to the petition filed by Delhi-based NGO ‘We the citizens', which has challenged the constitutional validity of Article35A on the ground that the President could not have amended the Constitution by an Order in 1954 and it was to be a temporary provision.
The court also has at least one petition challenging the validity of Article 370 of the Constitution that confers special status on Jammu and Kashmir before it.
But in its affidavit the state government has defended Article 35A terming it a permanent feature of the Indian Constitution. The 1954 Presidential Order granting special rights to permanent residents of the state had been recognized, accepted and acted upon since its enactment, it added.
