Article 35A: SC defers hearing case till January

The Supreme Court on Friday deferred the hearing on a bunch of petitions challenging the Constitutional validity of Article 35A as the Centre urged the court to take up matter after the Panchayat elections in the state. The elections spread over eight phases will conclude in December.

A bench of Chief Justice Dipak Misra, Justice M. Khanwilkar and Justice D.Y. Chandrachud deferred the hearing till the second week of January as Attorney General KK Venugopal told the court that it was a sensitive issue and could have a bearing on the Panchayat polls.

Article 35 A provides special rights and privileges to natives of Jammu and Kashmir, after taking note of submissions of the Centre and the state government that there was a law and order problem in the state.

A bench headed by Chief Justice Dipak Misra was informed by Attorney General K K Venugopal and Additional Solicitor General Tushar Mehta, representing the Centre and Jammu and Kashmir government respectively that in view of the impending eight-phased local body elections and law and order situation in the state, the hearing be deferred.

"Let the elections take place. We are told that there is a law and order problem," the bench which also comprised Justices AM Khanwilkar and DY Chandrachud said while adjourning the hearing to the second week of January on petitions challenging Article 35 A.

Article 35 A, which was incorporated in the Constitution by a 1954 Presidential Order, accords special rights and privileges to the citizens of Jammu and Kashmir and bars people from outside the state from acquiring any immovable property in the state.

It also denies property rights to a woman who marries a person from outside the state. The provision, which leads to such women from the state forfeiting their right over property, also applies to their heirs.

At the outset, ASG Mehta said local body elections for the post of 4,500 sarpanch seats and other local body posts would be held in eight phases and begin in September and continue till December.

"If the local body elections are not held then a fund of Rs 4,335 crores meant for local bodies will lapse," he said, while seeking adjournment of the hearing and referred to the prevailing law and order situation in the state.

The argument seeking adjournment was advanced after the bench indicated that it would hear the petitions in September itself to decide as too whether the petitions challenging the validity of Article 35 A can be referred to a five-judge Constitution bench.

"Large number of paramilitary forces are there. Let the elections go on calmly and thereafter hear these petitions in January or March. This issue has been very sensitive," Venugopal said.

The ASG said that though this Article relates to "gender discrimination" it is not the right time to hear the petitions.

Senior advocate Ranjit Kumar, appearing for a group opposed to the Constitutional scheme, raised the issue and said persons who migrated to Jammu and Kashmir and are living there for last 60 years, do not get benefit of employment or admissions in medical and engineering colleges despite living there for so long.

Political parties, including the National Conference and the CPI(M), have moved the Supreme Court in support of Article 35-A that empowers the state assembly to define "permanent residents" for bestowing special rights and privileges to them.

An NGO, 'Ikkjut Jammu', has also filed a plea seeking quashing of the provision. It has said that Article 35-A furthers the “two nation theory which is against the theory of secularism”.

The state government, while defending the Article, had cited two verdicts of the constitution benches of the Supreme Court in 1961 and 1969, which had upheld the powers of the President under Article 370(1)(d) of the Constitution to pass constitutional orders.

The Article was incorporated in the Constitution in 1954 by an order of President Rajendra Prasad on the advice of the then Cabinet headed by Jawaharlal Nehru.