The Centre on Monday told the Supreme Court that it had appointed an interlocutor for holding talks with various stakeholders in Jammu and Kashmir and requested it to adjourn the hearing over the politically contentious Article 35A of the Constitution, which gives special rights to permanent residents of the state, saying the court hearing may affect the dialogue process.
Appearing for the Centre, Attorney General K K Venugopal conveyed this to a three-judge bench comprising Chief Justice of India Dipak Misra and and Justices A M Khanwilkar and D Y Chandrachud following which the court deferred the hearing by three months. The AG had sought six months time.
A total of four petitions demanding scrapping of the provision have been filed in the SC and were listed for hearing on Monday before the bench.
The main petition was filed by Delhi-based NGO We the Citizens in 2014. Subsequently, three more petitions challenged the provision and were filed and clubbed with the main one.
On the last date of hearing on July 17, the Centre had refused to take a stand on the matter with the AG telling the court that the question was “very sensitive” and required “larger debate”.
The AG also told a two-judge bench which heard it then that it raised Constitutional issues after which the judges referred it to a three-judge bench.
Article 35A empowers the J&K legislature to define permanent residents of the state. It was added through the Constitution (Application to Jammu and Kashmir) Order, 1954 issued under Article 370 of the Constitution, The J&K Constitution, which was adopted on November 17, 1956, defined a Permanent Resident as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years and has “lawfully acquired immovable property in the state”.
The J&K legislature can alter the definition of PR only through a law passed by two-thirds majority.
The provision bars Indian citizens, other than those who are permanent resident of Jammu and Kashmir, from seeking employment, settling in the state, acquiring immovable properties or undertaking any trade or business if the state makes any law to that effect and it cannot be challenged before any court.
The NGO challenged the provision on the ground that it could only have been introduced through a Constitutional amendment under Article 368 and not through a Presidential Order under Article 370.
It alleged that the provision creates a class within a class of Indian citizens. “The citizen of India cannot be subjected to prohibition or restriction to get employment, trade and commerce acquisitions of property and assets in the state of Jammu and Kashmir in the garb of Article 35A which is brought on statute book’ by the Presidential order exercising power under Article 370(1) of the Constitution of India, cannot override the fundamental rights contained for the citizen in Part III of the Constitution of India. Therefore, Article 35A is in conflict with Article 14, 19 and 21 of the Constitution…and hence ultra vires and invalid,” the petition contended.
The J&K Government, however, defended the provision saying it had become settled law. “The instant petition seeks to upset settled law, accepted and complied with by all”, it said in its affidavit filed in response to the petition.
One of the other three petitions filed by Charu Wali Khanna, lawyer and former member of the National Commission for Women, questioned 35A saying it made way for gender discrimination by denying property rights to a J&K permanent resident woman who marries a non-resident while a man who marries outside the state will continue to enjoy his rights.
In the former, the children of the woman who marries a non-resident are also denied property rights.
Khanna’s counsel told the court that former J&K chief ministers Farooq Abdullah and Omar Abdullah had married women from outside the state and they got permanent resident status. “But we are state subjects and lose rights if we marry outside the state,” the counsel said.
The provision, he said, was gender-biased and also against Article 14 of the Constitution.
J&K countered this saying the position on the matter was settled by the state High Court in the case of Sushila Sawhney in 2002 wherein it held “in view of the majority opinion, we hold that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of the state of Jammu and Kashmir.”
Khanna, however, pointed out that the 2002 order was silent on the rights of the children born to woman who marry non-residents.
Political parties in J&K had warned of agitation if 35A was abrogated. Hardline groups have alleged that it’s an attempt to settle people from outside J&K in the state and to change its Muslim-majority character.
Tagging Khanna’s plea with the main petition in August, the SC had observed that the matter may finally have to be decided by a five-judge Constitution bench.