The Supreme Court is set to take up on Monday a clutch of petitions challenging the constitutional validity of the politically contentious Article 35A. Four petitions demanding scrapping of the provision have been listed before a bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandracud. The main petition was filed by Delhi-based NGO We the Citizens in 2014. Subsequently, three more petitions challenged the Article, and were clubbed with the main one.
Article 35A is a provision in the Constitution that 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. 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 a two-thirds majority.
The PR law replicated a state subject law promulgated by Dogra king Maharaja Hari Singh in 1927 following a strong campaign by Kashmiri Pandits, who were opposed to the hiring of civil servants from Punjab because it affected their representation in the administration. In 2014, the We the Citizens NGO filed a writ petition seeking striking down of Article 35A. While the J&K government filed a counter-affidavit and sought dismissal of the petition, the Central government did not do so, despite pleas from the state government, especially its ally PDP.
On July 17, Attorney General K K Venugopal had told the bench of then Chief Justice J S Khehar and Justice D Y Chandrachud that the petition raised constitutional issues, after which the court referred the matter to a three-judge bench and set six weeks for final disposal. The Centre had refused to take a stand on the issue, with the AG telling the court that the question was “very sensitive” and required a “larger debate”.
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The Union government’s decision to not come out in support of the J&K government’s position has been seen by some as part of a series of moves by it to weaken J&K’s special status. The RSS and BJP are opposed to Article 35A because it bars non-state subjects from settling and buy property in J&K. J&K Law Minister Abdul Haq Khan has been camping in New Delhi along with state Advocate General Jahangir Ganai, given the sensitivity of the case.
On Sunday, as per a PTI report, separatist leaders Syed Ali Shah Geelani, Mirwaiz Umar Farooq and Mohammad Yasin Malik issued a joint statement urging the people of Kashmir to launch a “mass agitation” if the Supreme Court cleared repeal of Article 35A. “A conspiracy has been hatched to change the demography of the Muslim-majority state… Any move to tinker with a state subject law will create a Palestine-like situation,” the statement said.
The present challenge to Article 35A in the Supreme Court is based on the ground that it could have been introduced in the Constitution only through a constitutional amendment under Article 368, and not through a Presidential Order under Article 370. This is an argument that the Supreme Court has rejected on at least three occasions earlier. In 1961, a five-judge Constitution Bench held that when, through an order under Article 370, the President applies any provision of the Indian Constitution to J&K, the term “modification” must be considered in its “widest possible amplitude”. It will not be limited to making only partial changes to the provision, but will include the power to “extend” and “enlarge” the constitutional provision, including making a “radical transformation”. In 1969, another five-judge Bench reaffirmed this view, while on December 16, 2016, a two-judge SC Bench followed the two earlier Constitution Bench decisions to reiterate that the Presidential Order can “extend” or “enlarge” the provisions of the Indian Constitution in its application to J&K.
One of the petitions against Article 35A, filed by Charu Wali Khanna, a lawyer and former member of the National Commission for Women, cites gender discrimination, claiming denial of property rights to a J&K PR woman who marries a non-resident, while a man who marries outside the state continues to enjoy PR rights. J&K has countered this saying the position on the matter had been settled by the state high court in the case of Sushila Sawhney in 2002, wherein it said that “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”.
J&K Advocate General Ganai has said there is absolutely no discrimination against women under this law.
Khanna’s petition had also raised the issue of the rights of spouses and children of PR women married to non-PR men. On the matter of such children, Ganai has pointed out that “Justice Muzaffar Jan (who had his own take in the 2002 ruling) was of the view that this matter should be referred to a larger bench”. A high-level committee constituted by the J&K government is in the process of resolving this issue, Ganai said.