New DelhiThe Special Representative for Jammu and Kashmir is currently discussing with all stakeholders the “sensitive” issues relating to the challenge to Article 35A of the Constitution, which empowers Jammu and Kashmir legislature to define its ‘permanent residents’ and bestow special rights and privileges on them, the Centre told the Supreme Court today.
Attorney General (AG) K K Venugopal told a bench headed by Chief Justice Dipak Misra that an interlocutor, appointed by the GoI to hold talks with all stakeholders to resolve the Kashmir issue, was discussing these issues and it was an “ongoing process”.
Dineshwar Sharma, former director of the Intelligence Bureau (IB), was appointed the Centre’s interlocutor for J and K on October 23 last year.
Article 35A, which was incorporated in the Constitution by a 1954 Presidential Order, accords special rights and privileges to the citizens of J and K and denies property rights to a woman who marries a person from outside the state. The provision, which leads such women from the state to forfeit their right over property, also applies to their heirs.
The top court was hearing a batch of pleas challenging Article 35A in addition to the main writ petition filed by a group called ‘We The Citizens’. Several interlocutory petitions have been filed in support of Article 35A by various individuals and civil society groups seeking continuance of the special status to J and K.
“This (discussion) is an ongoing process. It is a sensitive issue,” Venugopal told the bench, which also comprised Justices A M Khanwilkar and D Y Chandrachud.
“Your lordships have seen what is happening in Kashmir. The interlocutor is in the process of discussing it,” the AG told the bench, which posted the matter for hearing on August 6.
Senior advocate Rakesh Dwivedi, appearing for the J and K Government, along with its standing counsel Shoeb Alam, referred to two judgements by the constitution bench of the apex court and said the issues raised in the pleas challenging Article 35A were covered by these verdicts.
Senior advocate Shekhar Naphade, also representing the state, said that since 1927, the position in this regard was clear and it cannot be decided like this.
Senior advocate Ranjit Kumar, appearing for one of the petitioners, said it was strange that in J and K, a person who had migrated to Pakistan before 1947, could come and settle down under law but those who were residing there for generations cannot get a government job.
He said students were debarred from getting admission in government medical college there even after qualifying the National Eligibility cum Entrance Test (NEET), only on the ground that he or she was not a permanent resident of the state.
Another counsel appearing for the petitioners said it was a “human issue” as around five lakh people had migrated out of the state, were residing in places like Delhi and cannot go back to the valley.
A petitioner’s counsel also referred to Article 14 (equality before law) and Article 21 (protection of life and personal liberty) of the Constitution and said those who have migrated from the valley have the right to return.
However, Dwivedi told the court that since the issue required interpretation of the constitutional provision, no interim order should be passed in the matter.
The state government, while defending Article 35 A, had cited two verdicts by the constitution bench 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 Jawaharlal Nehru Cabinet. It empowers the state legislature to frame any law without attracting a challenge on the grounds of violation of the Right to Equality of people from other states or any other right under the Constitution.
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. Apex Court will on August 16 rehear the pleas.
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