Constitution Bench May Examine Validity Of Article 35A: SC

Coming straight to the crux of the matter, a five-Judge Constitution Bench of the Supreme Court may examine a law which denies Kashmiri women and their descendants of their property rights should they marry anyone outside the state and bars them from applying for local jobs. What nonsense! Why  should a Kashmiri women be barred from property rights or any other rights just because she marries someone from outside the state? This alone explains why Article 35A has been challenged many times in the past.
Constitution Bench May Examine Validity Of Article 35A: SC

                                          Before proceeding ahead, it is imperative to first understand what Article 35A is all about and how it crept inside our Constitution. The President while invoking the powers vested in him under Article 370 clause (d) issued “The Constitution (Application to Jammu & Kashmir) Order 1954 on May 14, 1954 (C.O. 48)” where under many provisions of Constitution and entries of Schedules were made applicable to J&K. The order, inter alia, states, “After Article 35, the following new Article shall be added, namely:
“35A. Saving of laws with respect to permanent residents and their rights- Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State: (a) defining the classes or persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any restrictions as respects: (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv ) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”

                                               While craving for the exclusive indulgence of my esteemed readers, let me inform them that a Kashmiri woman Charu Wali Khanna has challenged Article 35A of the Indian Constitution to make special laws regarding the state. Another state law which bars outsiders from picking up property or jobs in the state is already under challenge. All such raw discrimination must end forthwith once and for all! The 1954 order which ushered in Article 35A was only supposed to be a temporary provision and same is the case with Article 370 but why it is that even after 70 years of independence they have still not been scrapped?
                                             For my esteemed readers exclusive indulgence, let me also inform them that the top court is also examining a challenge to the special status guaranteed to the state under Article 370 of the Constitution. In its preliminary observations, a Bench led by Chief Justice-designate Dipak Misra said the law seemed to be violative of the right to equality guaranteed under the Indian Constitution. Very rightly so! He said that this may have to be examined by a Bench comprising five Benches.
                                      To put things in perspective, the Supreme Court is hearing a Public Interest Litigation (PIL) petition by Seema Razdan Bhargav and Charu Wali Khanna thereby challenging the Constitutional validity of Article 35A, which prohibits a non-Jammu and Kashmir resident from buying property in the State and ensures job reservation for residents. It came up before a Bench of Justices Dipak Misra and AM Khanwilkar, was tagged along with another petition challenging the Constitutional validity of Article 35A which has already been referred to a three-Judge Bench. Discrimination between citizens of one state as compared to that of another cannot be justified under any circumstances!    
                                        Truth be told, the Centre is likely to take a divergent opinion from that of the Jammu and Kashmir government on Article 35A, on the ground that it discriminates against women who marry outside the State from applying for jobs or buying property which is in violation of Article 14 of the Constitution. Article 14 stipulates that, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” It is beyond a straw of doubt that Article 35A falls foul of the direction laid down in Article 14 of the Constitution.
                                        It cannot be lost sight of that a 2002 order by the Jammu and Kashmir High Court in the State of Jammu and Kashmir versus Dr Sushila Sawhney and Others had said that the daughter of a permanent resident marrying a person outside the State would not lose the status of permanent resident of Jammu and Kashmir. More importantly, the Article 35A was a provision that had been inserted in the Constitution through a “Presidential Order” in 1954 and it was not ratified by Parliament. There is an option with the Centre to ratify the provision by sending it to Parliament. But it has not been considered yet. It accords special privileges to Jammu and Kashmir citizens and empowers state legislature to frame separate law for state.
                                                     More to the point, Article 35A of the Constitution that envisages special rights and privileges to the “permanent residents” of Jammu and Kashmir is a provision that came into force in 1954 when the President used the powers vested on him by Article 370 to introduce the “Constitution (Application to Jammu and Kashmir) Order 1954”. It must be pointed out here that under the said provision, which appears in the Constitution as an “appendix” and not as an amendment to Article 35, all citizens from other parts of the nation are prohibited from acquiring immovable property in the state of J&K, taking up employment under the state government, availing of the state sponsored scholarship schemes or settling permanently anywhere in the state.
                                               Needless to say, a Bench headed by Justice Dipak Misra told the counsel representing the petitioner – Charu Wali Khanna – in the new case that, “If we feel that the challenge to the validity is to be entertained, then it has to go toa five-Judge Bench,” a Bench headed by Justice Dipak Misra told the counsel representing the petitioner – Charu Wali Khanna – in the new case. The court noted another Bench headed by Chief Justice JS Khehar had last month referred the petitions to a three-Judge Bench, which is likely to assemble on August 29 to hear them.      
                                              As it turned out, Charu Khanna has also questioned Section 6 of the J&K Constitution that deals with the “permanent residents” of the state. Certain provisions deny property rights to a woman who marries a person not a “citizens” of Kashmir. According to the law, women lose rights over property and this also applies to her children. The woman also loses employment opportunities in the state.
                                           As things stand, the petition by Charu said that, “Section 6 of the J&K Constitution restricts the 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 a Permanent Resident Certificate.” Charu in her petition also added that, “Holder of a nonpermanent resident certificate in the state can vote in Lok Sabha elections, but a woman who marries an outsider cannot even vote in local elections. Holder of a nonpermanent resident certificate in the state can vote in Lok Sabha elections, but a woman who marries an outside cannot even vote in local elections.”   
                                          Going forward, it was also stated in the plea filed through advocate Bimal Roy Jad that, “Her children are denied a permanent resident certificate, thereby considering them illegitimate – not given any right to such a woman’s property even if she is a permanent resident of Jammu and Kashmir”. Charu also disclosed that she wanted to build a home in Jammu and Kashmir in order to rediscover her roots, but couldn’t do so due to the discriminatory laws peculiar to the state. This is really absurd and all such discriminatory laws ought to be scrapped as early as possible.
                                         Let me bring out here that on August 14 as soon as the matter came up for hearing, Additional Solicitor General PS Narasimha while representing the Centre informed the court about a pending petition filed in August 2014 by a Delhi-based NGO – ‘We the Citizens’ registered as a society through its President Sandeep Kulkarni. It was stoutly pleaded in the petition that Jammu and Kashmir is an integral part of India and Article 35A permits the State Government in Jammu and Kashmir to enact laws to restrict persons outside Jammu and Kashmir from acquiring employment, acquiring immovable property and settle in the State. This was added to the Constitution through a Presidential Order, 1954 which was issued by the President of India in exercise of the powers conferred by clause (1) of Article 370 (1) (d) of the Constitution with the concurrence of the Government of the State of Jammu and Kashmir.
                                         Be it noted, it was also stated in the petition that a bare reading of Article 370 (1) (d) of the Constitution of India would show that there is no power conferred to the President of India to amend the Constitution by adding any new Article by himself. It also states that Article 368(1) empowers the Parliament to amend, vary and repeal any provision of the Constitution and states that it is beyond the power and jurisdiction of the President to inculcate any Article to the Constitution. Therefore, it is unconstitutional for the President to drive a new Article by himself.
                                               Not stopping here, it is further contended that this Article is violative of fundamental rights which are Article 14, 21 and 19 of the Constitution as it creates a difference among people of the rest of India and Jammu and Kashmir. It was prayed in the petition that a declaration be made that Constitution can be amended only by Article 368. It was also demanded in the petition that the Article 35A be held “unconstitutional” as the President could not have “amended the Constitution” by way of the 1954 order, and that it was only supposed to be a “temporary provision”.   
                                 On July 17, a Bench comprising CJI JS Khehar and Justice DY Chandrachud had referred the NGO’s plea to a three-Judge Bench after Attorney General KK Venugopal said it raised Constitutional issues. Venugopal pointed out that the NDA government was not very keen on filing affidavit in this and instead wants a larger debate on it which it said was “a very sensitive matter”. Venugopal then asked the CJI JS Khehar to refer the matter to a larger Bench as Constitutional issues were involved in the case. The Court then made it clear that a three-Judge Bench will hear the matter after six weeks.
                                         In all fairness, Article 35A and 370 must be scrapped and Jammu and Kashmir must be integrated with the rest of India. As far as protests in J&K are concerned, that has been happening since 1947. Nothing new. Kashmir Valley cannot alone be allowed to hold the whole State of Jammu and Kashmir to ransom! When India always maintain J&K as an integral part of India, it is high time and now it must be fully integrated with the rest of India so that it becomes an inseparable part of India in reality and not just on papers or on lips alone! Too much importance should not be attached to what Mehbooba says or what Abdullahs says or what Hurriyat says who love chanting anti-Indian slogans! One can only laugh when Mehbooba says that “any attempt to tinker with Article 35A would have repercussions, and India will not get a shoulder to carry its national flag in J&K.” This is certainly not a laughing matter. J&K is the head of India and we have lost countless soldiers to ensure that it remains with India! No force can snatch away J&K from India!    
                                        Why those Indians who settled in Jammu are still treated as refugees and why they are not allowed to become owner of the land they cultivate even though they can build houses on the allotted land nor can they sell or dispose the land? Why they are even denied jobs, admissions in higher educational institutions, and worst of all even denied the right to vote in elections for panchayats, local bodies and State legislature and cannot avail of any scholarships like Prime Minister Special Scholarship Scheme for J&K and any other benefit as this can be achieved only by the production of Permanent Resident Certificate which is mandatory and which is again denied to them? Why the people who migrated from West Pakistan at the time of partition or those migrants from Nepal who were brought to serve in the Maharaja’s Army before partition and about 200 odd Valmiki families who migrated from Punjab in late fifties and were mostly employed as safai karamcharis are still discriminated against due to this shameful “Special Status” enjoyed by J&K by virtue of Article 35A and 370? But in contrast, Muslim families who migrated to Pakistan and became Pakistani citizens are allowed to return even today and claim their property in accordance with Section 6(2) of the Constitution of Jammu and Kashmir amended vide 6th Amendment enacted in 1965. This is beyond absurdity and discrimination of the highest order!
                                            One fervently hopes that the Constitution Bench will act decisively so that merger of J&K becomes complete and final with India! Two wrongs can never make a right. Just because Article 35A and Article 370 have existed for 70 years it does not mean that they can never be abrogated! I am sure that the Supreme Court will keep the larger picture in mind and render a landmark decision on this very soon!   
Sanjeeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kaankerkhera,
Meerut – 250001, Uttar Pradesh.