Article 35A: Fresh plea filed in SC, petitioner says article violates gender equality

The debate on the validity of Article 35-A of the Constitution, which confers special status to Jammu and Kashmir, is set to get louder, a report in India Today, a news agency said on Tuesday.

Article 35-A of the Indian Constitution is an article that empowers the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. It is added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India, “in exercise of the powers conferred by” clause (1) of Article 370 of the Constitution, with the concurrence of the Government of the State of Jammu and Kashmir.

Three weeks after the Modi government told the Supreme Court, in regard to two petitions seeking scrapping of the clause, that it wanted a “larger debate” on the issue, a fresh plea has been filed on the ground that the provisions under Article 35-A were discriminatory towards women natives of the state.

Petitioner Charu Wali Khanna, a Supreme Court lawyer and a native of Kashmir, stated: “Article 14 of Constitution gives a fundamental right to equality before law. But 35-A is heavily loaded in favour of males because even after marriage to women from outside they will not lose the right of being permanent residents.”

A woman from outside the state shall became a permanent resident on marrying a male permanent resident of the state but a daughter who is born a state subject will lose the right on marrying an outsider.

Married out of her caste and settled outside the state, Wali Khanna became a non-permanent resident. “Despite being a Kashmiri Pandit by birth, the state does not recognise me as its citizen,” Wali Khanna told Mail.

“I desired to build a home in Jammu and Kashmir in order to re-discover my roots but I was barred by the peculiar, discriminatory law in doing so,” she said. “Unreasonable classification between males and females and between females and females is against the spirit of Article 14 of the Constitution.”

Article 35-A allows the Jammu and Kashmir legislature to define the list of ‘permanent residents’ of the state, who are eligible to vote, work for the state government, own land, secure, public employment and college admissions etc. Non-permanent residents are denied all these rights.

Wali Khanna contended that the rules restricted the basic right of a Kashmiri woman to marry a man of her choice by not giving her children any right to property if the husband is not holding a Permanent Resident Certificate (PRC). “Even the children of such a couple are also denied a permanent resident certificate – thereby considering them illegitimate,” she said.

Wali Khanna also argued that Article 35A can be struck down on the sole ground that it was incorporated in the Indian Constitution through a Presidential Order on May 14, 1954, bypassing Parliament. She has challenged the notification dated April 20, 1927 issued by the Maharaja Bahadur of Kashmir. “Look at the irony. I can work and buy property anywhere in India, in fact the world, except in Jammu and Kashmir to which me and my ancestors belonged to,” she said.

A bench of justices Dipak Misra and A M Khanwilkar sought the Centre’s view and kept the petition for detailed hearing on August 14. The BJP in its election manifesto had promised to scrap or at least dilute the special status to the state given under Article 35 A.

The RSS too favours abolition of the special status to change the state’s demographics. A petition in this regard filed by RSS-backed think tank called the Jammu and Kashmir Study Centre is already pending in the SC. The RSS has termed the Article a recipe to several conflicts.

National Conference leader Omar Abdullah, on the other hand, has said that those seeking a debate on the special status accorded to J&K were “playing with fire” as the issue is linked to the state’s accession to India.

“How can you debate special status of Jammu and Kashmir without debating accession? You can’t. They are two sides of the same coin. J&K acceded to India on the special status that was granted to it,” Omar had said.

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