NEW DELHI The Jammu and Kashmir government Monday sought permission from the Supreme Court to circulate a letter to parties for adjourning upcoming hearing on pleas challenging the constitutional validity of Article 35A, which provides special rights and privileges to natives of state, saying there was no “elected government” in the state.
The apex court is scheduled to hear during the week the petitions challenging the Article 35A.
A bench comprising Chief Justice Ranjan Gogoi and Justice Sanjiv Khanna was told by lawyer Shoeb Alam, representing the state government, that he was seeking its nod to circulate the letter to parties for getting the scheduled hearing deferred.
“On the day of listing, the undersigned (Alam) shall be requesting for an adjournment in the matter since presently there is no elected government in the state of Jammu and Kashmir and the state is under President rule.
“The present matter involves a sensitive issue regarding a challenge to Article 35A of the Constitution of India. A short reply has been filed by the state of Jammu and Kashmir in the lead matter ‘We the Citizens’ and notices have not been issued on the other petitions. It will therefore be requesting that the matter may kindly be heard when an elected government is in place,” the state government said in its letter.
Earlier, the apex court had deferred till January this year the hearing on pleas after the Centre and the state had said that local bodies polls there would go on till December.
The Centre and the Jammu and Kashmir government had said the issue of Article 35A was “very sensitive” and keeping in mind the law and order aspect, the hearing be held in January or March, 2019.
“Let these matters be listed in the second week of January, 2019. All interlocutory applications shall be taken up along with the main matter,” the bench had then said.
Article 35A, 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 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.
The bench is hearing several petitions including the one filed by NGO ‘We the Citizens’ through lawyer Barun Kumar Sinha.
On August 6, last year, the apex court had said a three-judge bench would decide whether the pleas challenging Article 35A should be referred to a five-judge constitution bench for examining the larger issue of alleged violation of the doctrine of basic structure of the Constitution.
Several petitions including by political parties like the National Conference and the CPI-M, were also filed in the Supreme Court in support of Article 35A that also 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 35A 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.
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