SC refers plea against Art 35A to larger bench

Satya Prakash

Tribune News Service

New Delhi, July 17

The Supreme Court (SC) today referred to a larger bench a petition challenging Article 35A of the Constitution that provides special rights and privileges to permanent residents of Jammu and Kashmir and debars rest of Indians from acquiring immovable property, obtaining state government jobs and settling in the state.

A bench of Chief Justice of India JS Khehar and Justice DY Chandrachud Venugopal sent it to a three-judge bench after Attorney General KK Venugopal said it was a “very sensitive” matter which would require a “larger debate”. There were constitutional issues involved in it and it should be heard by a larger bench, he added.

Interestingly, the Centre has shied away from filing its response to spell out its stand on the issue. The Attorney General told the bench that the government didn’t want to file its affidavit in response to the petition.

The bench — which gave liberty to parties to file additional documents — tagged it with another petition on the special status given to Jammu and Kashmir under the Indian Constitution and posted it for hearing after six weeks.

Delhi-based NGO “We the citizens” has challenged the constitutional validity of Article 35A on the ground that the President could not have amended the Constitution by an order in 1954 and it was to be a temporary provision.

The petitioner accused the Jammu and Kashmir government of discriminating against non- permanent residents as they were debarred from buying properties, getting government employment and voting in state elections.

But the state government has filed an affidavit defending Article 35A terming it a permanent feature of the Indian Constitution. The 1954 Presidenial Order granting special rights to permanent residents of the state had been recognised, accepted and acted upon since its enactment, it added.

Jammu and Kashmir Advocate General Jahangir Iqbal Ganai, who was president in the top court during the hearing, said, “Under Article 370)1)(d), the President has powers to apply the Indian Constitution with exemptions and modifications. As a result of this the President has added Article 35A vis-a-vis its applicability to Jammu and Kashmir.”