A three-judge bench of the Supreme Court will hear a petition filed by two women of J&K origin who have challenged Article 35 A of the Constitution, maintaining that it is discriminatory to women. This law accords special rights and privileges to the citizens of Jammu and Kashmir.
The plea by Seema Razdan Bhargav and Charu Wali Khanna, which came up Monday before a bench of Justices Dipak Misra and A M Khanwilkar, was tagged along with another petition challenging the Constitutional validity of Article 35A which has already been referred to a three-judge bench.
Meanwhile, top government officials Monday said the argument on gender discrimination is one of the questions that needs to be settled and they will urge the Attorney General to present a case for a “larger debate”. The Home Ministry, officials said, had earlier communicated to the AG its position, leaving the interpretation of the law to the Supreme Court.
On Monday, as soon as the matter came up for hearing, Additional Solicitor General P S Narasimha, representing the Centre, informed the court about a pending petition filed in 2014 by Delhi-based NGO ‘We the Citizens’. On July 17, a bench comprising Chief Justice of India J S Khehar and Justice D Y Chandrachud had referred the NGO’s plea to a three-judge bench after Attorney General K K Venugopal said it raised Constitutional issues.
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.
The J&K counsel opposed the plea, saying the position on the matter was settled by the J&K High Court in the case of Sushila Sawhney in 2002.
Officials from J&K cited the 2002 order which stated: “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.”
According to officials, a Special Leave Petition (SLP) was filed by the J&K government before the Supreme Court against the 2002 order but was later withdrawn. On the question of rights of children of a permanent resident citizen (PRC) woman married to a non-PRC, the J&K government has set up a committee to examine the matter.
Petitioner Khanna, however, told The Indian Express that the question was not only about women who marry outside the state but also their children. She said the 2002 judgment does not answer this question.
J&K Advocate General Jahangir Ganai, while speaking to this newspaper, pointed out that “on the issue of whether the children of a permanent resident woman who is married to a non-permanent resident will automatically be eligible to permanent resident rights, 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”.
Ganai maintained there was absolutely no discrimination against women in this law. “After the full bench judgment of the J&K High Court, a permanent resident woman who is married to a non-permanent resident does not lose her status of being a permanent resident,” he said. “Earlier, a permanent resident woman would lose her PR status the moment she married a non-PR. The PRC issued to a woman was only valid until marriage. Now that is not the case,” he said.
Tagging Khanna’s petition with the NGO’s plea, Justice Misra observed that he was of the view that if the validity of 35A had to be examined, it had to be done by a five-judge bench.
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