SC hints at sending petitions against Article 35A to constitution bench

Satya Prakash

Tribune News Service

New Delhi, August 6

The Supreme Court on Monday indicated that petitions challenging the validity of Article 35A of Constitution-which gives permanent residents of Jammu and Kashmir certain privileges and deny settlement rights to other Indian citizens - will have to be finally decided by a Constitution Bench.

A two-judge Bench headed by Chief Justice of India Dipak Misra - which adjourned the hearing in view of the ongoing preparations for rural and urban local body polls in the state - said first a three-judge Bench would take up the matter and decide if it needed to be referred to a five-judge Constitution Bench.

As the Bench said the petitions would be taken up by a three-judge Bench in the week commencing August 27, petitioners' advocates opposed the adjournment and demanded early hearing.

Political parties in the state have been agitating against any possible move to scrap the controversial provision.

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. It denies property rights to woman marrying men from other states. This legal disability also applies to heirs of such women.

Besides, being violative of right to equality and certain other rights, Article 35A has been challenged on the ground that the President could not have amended the Constitution by an executive order without parliamentary approval and that it was to be a temporary provision.

The state government has maintained that the Supreme Court had already settled the issue by ruling that Article 370 of the Constitution had attained permanent status. It had cited two Constitution Bench verdicts delivered in 1961 and 1969, which upheld the President's powers under Article 370(1)(d) of the Constitution to issue constitutional orders.

Interestingly, the Centre has been shying away from filing its response to spell out its stand on Article 35A. The Attorney General had last year told the court that the government didn't want to file its affidavit in response to petitions against Article35A. 

CJI Misra said under Article 145 of the Constitution any challenge to validity of a constitutional provision was required to be examined by a Constitution Bench. The Constitution Bench would have to examine if Article 35A violated basic structure of the Constitution or not.

Earlier, Additional Solicitor General Tushar Mehta, who was assisted by Jammu and Kashmir Advocate General DC Raina and advocate M Shoeb Alam, sought adjournment on behalf of the state citing preparations for local body polls in September in the state which is currently under Governor's rule.

On behalf of the Centre, Attorney General KK Venugopal supported it. He said an interlocutor had been appointed and talks were going on for a peaceful solution of Kashmir problem.

As a lawyer pointed out that before every hearing on petitions against Article 35A Kashmir was virtually shutdown, the Bench said the petitions came more than 60 years after being incorporated. "We are not concerned. We will only see if this provision violates basic structure of the Constitution."

The court's comment that in "matters like this" where constitutional scheme was under challenge, it would like to hear the Attorney General and the counsel for state will have "very limited" and "minimal" role, attracted sharp comments from counsel representing National Conference and CPI(M) which have moved the top court in support of Article 35A.

"The state government has a very key and pivotal role in it," said senior advocate Rakesh Dwivedi, representing one of the parties.

The Supreme Court had on May 14 deferred hearing on petitions challenging Article 35A at the request of the Attorney General who had termed it "a very sensitive matter". "A solution is in the course of being devised," Venugopal had told the Bench.