Challenge to Article 35A: ‘Hearing appears unlikely till Tuesday’

Satya Prakash
Tribune News Service
New Delhi, February 23

Petitions challenging the constitutional validity of Article 35A are unlikely to be heard by the Supreme Court at least till Tuesday, sources said here on Saturday evening.

“The matter figures in the weekly list of cases generally taken up on Tuesday, Wednesday and Thursday. It’s not there in Tuesday’s list,” a source familiar with the procedure told The Tribune, adding, “It had figured in the weekly list of cases earlier as well.”

Earlier this month, when it was listed in the weekly list, Jammu and Kashmir government standing counsel M Shoeb Alam had circulated a letter seeking adjournment of the matter.

Amid crackdown on separatist leaders in Kashmir, there are rumours about hearing of petitions against Article 35A by the Supreme Court next week. Political parties in the militancy-hit state have been agitating against any possible move to scrap the controversial provision. National Conference and CPI(M) have already moved the Supreme Court in support of Article 35-A.

But the Supreme Court had on January 22 said it would take an “in-chamber” decision on listing of petitions against Article 35A for hearing.

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 top court had on August 31 last year adjourned to January 2019 hearing on petitions against Article 35A of the Constitution after both the Centre and state of Jammu and Kashmir sought deferment citing law and order problem and preparations for local body elections in the state.

However, on February 22 the top court had said it would consider urgent listing of a PIL challenging the validity of Articles 35A and 370 of the Constitution.

“Give the mentioning memo to the Registrar. We will see it," a Bench headed by Chief Justice of India Ranjan Gogoi had told Delhi BJP leader advocate Ashwini Upadhyay after he demanded urgent hearing of his petition, terming it of "extreme national importance".

The top court had earlier indicated that petitions challenging the validity of Article 35A of Constitution will have to be finally decided by a Constitution Bench.

The state government has maintained that the Supreme Court has 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.

But 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.

There is at least petition against Article 35A which is by those who migrated to Jammu and Kashmir from other parts of India and did not get benefit of employment or admissions in medical and engineering colleges despite living there for 60 years.

'Ikkjut Jammu', an organisation opposed to Article 35A, has maintained that the provision under challenge created an Islamic State on the secular territory of India and should, therefore, be declared unconstitutional.