Fresh plea challenging validity of Article 35A filed in SC

New Delhi: A fresh plea was filed in the Supreme Court challenging Article 35A, which provides special rights and privileges to the natives of Jammu and Kashmir, on the ground that it allegedly violates rights of women marrying people from other states.

The apex court is already hearing a batch of pleas seeking quashing of the article that confers special status to permanent residents of the state.

An apex court bench headed by Chief Justice Dipak Misra had earlier adjourned the hearing on the five pending pleas “to the week commencing from August 27.”

The state government had sought an adjournment of the hearing on the pleas citing upcoming local body elections in the state, and it was supported by the Centre.

In yesterday’s petition filed by BJP leader Ashwini Kumar Upadhyay, it is stated that Article 35A was arbitrary and contrary to fundamental rights as it allegedly violates the rights of a woman who marries a man of her choice and belonging to other states by not giving the heirs any right to property.

It alleged that the provision considers the woman’s children unfit for inheritance and does not give right of property to her children even if she is a permanent resident of Jammu and Kashmir.

“Article 35A gives a free hand to the state government and politicians to discriminate between citizens of India on an unfair basis and give preferential treatment to some by trampling over others, since the non-residents of the state are debarred from buying properties, getting a government job or voting in the local elections,” the plea claimed.

It sought court’s direction to the Centre and state government to declare that fundamental rights, including the right to equality, right to marry and right to privacy, are equally available to all Indian citizens throughout the territory of India, including Jammu and Kashmir.

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.

The petitioners opposing the Article 35A include NGO ‘We the Citizens.’ Political parties, including the National Conference and the CPI-M, have moved the Supreme Court in support of Article 35A that empowers the state assembly to define “permanent residents” for bestowing special rights and privileges to them.

The state government, while defending the article, 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.