The question whether Article 35A, relating to special rights and privileges of the citizens of Jammu and Kashmir, is ultra vires of the Constitution or not is likely to head for a decision before a five-judge Constitution Bench.
This indicates that the constitutionality of Article 35A will be under scrutiny came from a Bench of Justices Dipak Misra and A.M. Khanwilkar while hearing a petition which has challenged the Article as well as Section 6 of the Jammu and Kashmir Constitution, which deal with the permanent residents’ status in J&K.
The petition filed by Charu Wali Khanna said Article 35A protects certain provisions of the J&K Constitution which denies property rights to native women who marry from outside the State. The denial of these rights extend to her children also. Article 35A also empowers the State’s legislature to frame any law without attracting a challenge on grounds of violating the Right to Equality of people from other States or any other right under the Constitution.
Centre is likely to take a divergent opinion from that of the Jammu and Kashmir government on Article 35(A), on the grounds that it discriminates against women who marry outside the State from applying for jobs or buying property, which is in violation of Article 14 of the Constitution.
A 2002 order by the J&K High Court in the State of Jammu and Kashmir Versus Dr Sushila Sawhney and Others had said the daughter of a permanent resident marrying a person outside the State would not lose the status of permanent resident of J&K.
Section 6 of the Jammu and Kashmir Constitution restricts the basic right of women to marry a man of their choice by not giving the heirs any right to property if the woman marries a man not holding the Permanent Resident Certificate. Her children are denied a permanent resident certificate thereby considering them illegitimate — not given any right to such a woman’s property even if she is a permanent resident of Jammu and Kashmir.
Article 14 says the “State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”
Article 35A 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.
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