Article 35-A pleas on J&K status in Supreme Court on Monday

New Delhi: The Supreme Court is scheduled to hear on Monday a batch of petitions challenging the legal validity of Article 35-A of the Constitution that provides special status to the state of Jammu and Kashmir and bars people other than the original inhabitants of the state from acquiring immovable property in the state, getting government jobs and availing educational scholarships.

A bench of Chief Justice Dipak Misra and Justice A.M. Kanwilkar will hear the petitions filed by NGO We the Citizens, advocate Ashwini Kumar Upadhyaya and others seeking a declaration that Article 35-A is unconstitutional and should be struck down as void.

Charu Wali Khanna, a Kashmiri Pandit woman who has also filed a petition against 35-A, has contended that since she had married outside her caste and settled outside J&K, she was not entitled to own property in the state, and even her children cannot get property. It was argued that there is gender bias in this Article and that it violates the right to equality.

Attorney-general K.K. Venugopal, appearing for the Centre, is likely to press for hearing by a five-judge Constitution Bench as the issue involves interpretation of constitutional provisions.    

Article 35-A was inserted by way of Constitution (Application to Jammu & Kashmir) Order 1954 by the President of India exercising power under Article 370(1)(d) of the Constitution of India.

The matter was raised in a public interest litigation (PIL) in 2014 by the Delhi-based We the Citizens, against the continuance of J&K’s special status which, it alleged, is discriminatory.

The petitioners contended that the President could not have amended the Constitution by the 1954 order and it was supposed to be a temporary provision.

They contended that the J&K government, under the guise of Article 35-A and Article 370, which grants special autonomous status to the state, has been discriminating against residents from other states.

The state government has justified the provision and said that Article 35-A has become a permanent feature of the Indian Constitution and that the 1954-Presidenial Order granting special rights to permanent residents of the state has been recognised, accepted and acted upon since its enactment and cannot be challenged now.

The state government said the petitions seek to upset settled law that is accepted and complied with by all. Further, as the challenge to the Presidential Order has come after more than 60 years, such a plea cannot   be entertained.

The petition challenging Article 35-A also pointed to the plight of more than 4,000 people belonging to the second, third and fourth generation of Punjabis from Gurdaspur and Amritsar who settled in the Jammu area to work as sweepers.

It raises issues related to their fundamental rights, alleging that they are suffering due to denial of right to seek admission in state-funded higher technical educational institutions, denial of right to get state scholarship and  aid to students, denial of opportunity of employment in state services, public sector undertakings and local bodies.