The Jammu and Kashmir National Conference (NC) on Friday moved the Supreme Court in support of the Constitution’s Article 35-A that empowers the state assembly to define “permanent residents” for bestowing special rights and privileges to them.
After the CPI(M)’s Jammu and Kashmir unit, the National Conference moved the present petition seeking to be heard in the present matter, saying that the Article serves as an important link between the state and the Union and its people and serves to maintain a fine balance of constitutional federalism.
The Supreme Court is already seized of a batch of petitions in the matter, including the one filed by NGO We the Citizens seeking quashing of the article, which confers special status to permanent residents of Jammu and Kashmir.
The NC’s intervening application, filed through advocate Adeeba Mujhaid, has sought intervention in the “We the Citizens” petition, saying that the challenge raised in the pending writ petition suffers from gross delays and latches and being raised after more than 60 years and cannot be maintainable.
The matter is listed for hearing on Monday before a bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud.
“Any attempt to tinker with the said balance would ruin the fabric of the federal structure envisaged under the Constitution and jeopardise the avowed special status guaranteed to the state of Jammu and Kashmir, thereby landing a devastating fatal blow to the state and its probe,” the petition filed by NC through its provincial president Nasir Aslam Wani said.
It said that “Article 35-A and the special status and special laws of the J-K are a crucial existential issue for the state and its people.”
“The rights of all permanent residents of the state, irrespective of their religion, creed, region, socio-economic standing etc. are firmly and constitutionally rooted in Article 35-A.
“The people of all the three regions of the state — Jammu, Ladakh and Kashmir Valley — will be vitally affected by the outcome of the present proceedings,” it said.
On July 31, CPI(M)’s J-K unit had said in its petition that it was of the unequivocal opinion that the Article shall in “no circumstance be annulled, modified or repealed”.
On May 14, Attorney General K K Venugopal had informed the apex court that the Centre’s interlocutor for Jammu and Kashmir is currently discussing with all stakeholders the “sensitive” issues relating to the challenge to Article 35-A of the Constitution.
He had said the interlocutor, appointed by the Centre to hold talks with 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 the state on October 23 last year.
Article 35-A, which was incorporated in the Constitution by a 1954 Presidential Order, accords special rights and privileges to the citizens of J&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.
Several interlocutory petitions have been filed in support of Article 35-A by various individuals and civil society groups seeking continuance of the special status to Jammu and Kashmir.
The Jammu and Kashmir government through its standing counsel Shoeb Alam had referred to two judgments by the constitution benches of the apex court and said the issues raised in the pleas challenging Article 35-A were covered by these verdicts.
The state government, while defending Article 35-A, had cited two verdicts by 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.
The article was incorporated in the Constitution in 1954 by an order of president Rajendra Prasad on the advice of the then 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 35-A was gender-biased and violative of the basic structure of the Constitution.
The court while hearing a plea earlier by 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 35-A with a similar petition that is pending for hearing by a three-judge bench.
The state government had earlier said 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.
In Srinagar, Wani said in a statement that the party “will fight this battle from the forefront and will do everything necessary to safeguard the state’s special status and political rights.”
“We will make our case in the Supreme Court in light of the constitutional facts through which the state negotiated its accession with the Union of India – after having acceded to the Union in extraordinary circumstances,” he said.