AgenciesNew Delhi, May 14:
The Supreme Court on Monday said it will hear on August 16 the petitions challenging the validity of Article 35-A of Indian Constitution, which gives special rights to permanent residents of the Jammu and Kashmir.
Four petitions have been filed, demanding scrapping of Article 35A in Jammu and Kashmir.
The main petition was filed by Delhi-based NGO, ‘We the Citizens’ in 2014. Subsequently, three more petitions challenged the provision and were filed and clubbed with the main one.
In October last year also, SC had deferred the hearing for three months after Government of India (GoI) told the apex court that it had appointed an interlocutor for holding talks with various stakeholders in Jammu and Kashmir and requested it to adjourn the hearing over the politically contentious issue, claiming the court hearing may affect the dialogue process.
Article 35A empowers the J&K legislature to define permanent residents of the state. It was added through the Constitution (Application to Jammu and Kashmir) Order, 1954 issued under Article 370 of the Constitution. The J&K Constitution, which was adopted on November 17, 1956, defined a Permanent Resident as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years and has “lawfully acquired immovable property in the state”.
The J&K legislature can alter the definition of permanent residents only through a law passed by two-thirds majority.
The provision bars Indian citizens, other than those who are permanent resident of Jammu and Kashmir, from seeking employment, settling in the state, acquiring immovable properties or undertaking any trade or business if the state makes any law to that effect and it cannot be challenged before any court.
The NGO challenged the provision on the ground that it could only have been introduced through a Constitutional amendment under Article 368 and not through a Presidential Order under Article 370.
The apex court had on August 14 last year said a constitution bench may examine whether Article 35A was gender-biased and violative of the basic structure of the Constitution.
The court while hearing a plea earlier by Dr Charu Wali Khanna, a Kashmir resident, had indicated that if the Article violated basic structure of the Constitution or was ultra vires, the issue may be dealt with by a five-judge bench. It had tagged the plea challenging Article 35A with a similar petition that is pending for hearing by a three-judge bench.
The state government had earlier said that the issue has already been "prima facie settled" by a full bench of the High Court in its verdict in 2002.
In the case, the high court had, by a majority view, held that a daughter of a permanent resident of Jammu and Kashmir marrying a non-permanent resident will not lose the status of a permanent resident.