Plea Against Article 35A May Be Heard by Constitutional Bench: SC

Meanwhile Omar Abdullah slammed the BJP for its stance on Article 35A, saying that its removal will benefit no one. 

3 min read
Protests in Kashmir over the proposed scrapping of Article 35A of the Constitution. (Photo: PTI)

If Article 35A relating to special rights and privileges of the citizens of the Jammu and Kashmir is ultra vires of the Constitution or if there is any procedural lapse, the issue may be dealt with by a five-judge constitution bench, the Supreme Court indicated on Monday.

A bench of Justices Dipak Misra and AM Khanwilkar tagged the issue along with a similar pending matter for hearing by a three-judge bench later this month.

If this matter requires being heard by a five-judge constitution bench, then the three-judge bench which will hear the matter may refer to it.
SC bench

During the hearing, counsel for Jammu and Kashmir government told the bench that the issue of Article 35A has been “prima facie settled” by the state High Court in its verdict passed in 2002.

The apex court was hearing a plea filed by Charu Wali Khanna, challenging Article 35A of the Constitution and Section 6 of the Jammu and Kashmir Constitution which deal with the "permanent residents" of the state.

The plea has challenged certain provisions of the Constitution, which deny property rights to a woman who marries a person from outside the state. The provision, which makes such women from the state lose rights over property, also applies to her son.

Article 35A, which was added to the Constitution by a Presidential Order in 1954, accords special rights and privileges to the citizens of Jammu and Kashmir.

It also empowers the state's legislature to frame any law without attracting a challenge on grounds of violating the Right to Equality of people from other states, or any other right under the Indian Constitution.

“Section 6 of the Jammu and Kashmir Constitution restricts the basic right of women to marry a man of their choice by not giving the heirs any right to property if the woman marries a man not holding the Permanent Resident Certificate,” the plea, filed through advocate Bimal Roy Jad, said.

Her children are denied a permanent resident certificate, thereby considering them illegitimate – not being given any right to such a woman’s property, even if she is a permanent resident of Jammu and Kashmir. 
The plea

The petitioner said that as per the provisions, if a woman marries a person outside Jammu and Kashmir, then she loses property rights as well as employment opportunities in the state.

In case of a related petition filed by Delhi-based NGO 'We The Citizens' challenging Article 35A of the Constitution, a bench headed by the Chief Justice had referred to a larger bench.

Omar Abdullah Slams BJP Over Article 35A

Meanwhile, National Conference leader and former J&K Chief Minister Omar Abdullah raked up the issues surrounding Article 35A, as well as Article 370 on Monday.

Criticising the BJP, he said:

If BJP succeeds in scrapping Article 35A through court, our state subject laws will end... Surprisingly, BJP has made the issue of 35A a case of Jammu vs Kashmir. They say it will benefit Kashmir, but adversely affect Jammu... No region of the state will benefit from the removal of 35A. I am just correcting the propaganda argument of the BJP:
Omar Abdullah

He went on to also slam the separatist Hurriyat, saying that it “has no business to comment on Article 35A, as it does not believe in the Constitution of India.

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