Constitution Bench for Article 35A on Special Rights and Privileges for J&K

Lex Resonance

Petition Filed by: In 2014, a non-governmental organization, “We the Citizens”, filed a petition in the apex court seeking that Article 35A should be abrogated and the provision was “unconstitutional” and approved without any debate in the parliament.

Issue: Article 35A empowers the J&K legislature to define who is a permanent resident of the state. This provision was added to the Constitution through the Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the country’s first president, Dr. Rajendra Prasad, on May 14, 1954, in the exercise of the powers conferred by Article 370 (1) of the Constitution of India. The J&K Constitution, which was adopted on November 17, 1956, defined a “permanent resident” as a person who was born or settled in the state before May 14, 1954, or who has been a resident of the state for ten years and has “lawfully acquired” immovable property in the state. According to the website the Wire, the law dates back to 1927 when the Dogras from Jammu approached the then Maharaja fearing that an influx of people from Punjab would lead to their domination in government services. These fears led to the issuance of a separate notification by the Maharaja in 1927 and 1932 which defined the state subjects adding that once the state constitution was framed in 1956, it retained the Maharaja’s definition of permanent residents and the privileges enjoyed by them exclusively in matters related to employment, acquisition of immovable property, settlements and scholarships. Article 35A, which accords special rights and privileges to citizens of J&K and deny property right to a woman who marries a person from outside the state. The provision also applies to her heirs. Article 35A, empowers the state’s legislature to frame any law without attracting a challenge on the grounds of violating the Right to Equality of people from other states or any other right under the Indian Constitution. Article 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.

Present Status: Supreme Court on Monday (August 14, 2017) stated a Constitution Bench might examine whether it is gender-biased and violative of the basic structure. The apex court indicated that if Article 35A relating to special rights and privileges of the citizens of the Jammu and Kashmir whether it violates the basic structure of Constitution or if it is ultra vires, the issue may be dealt with by a five-judge constitution bench.

Pleas: Advocate Shoeb Alam, appearing for the J & K government, said the issue has already been “prima facie settled” by the Full Bench of the High Court in its verdict in 2002. He said that in Dr. Susheela Sawhney vs. State of Jammu and Kashmir. In that case, the full bench of High Court in its majority view had held that a daughter of a permanent resident marrying a nonpermanent resident would not lose the status of permanent resident of the state of Jammu and Kashmir. The Petitioner has challenged Section 6 of the Jammu and Kashmir Constitution, which deals with the “permanent residents” of the state. The plea has challenged certain provisions of the J and K Constitution, which deny property rights to a woman, and her children who marry a person from outside the state. The Petitioner said that as per the provisions, if a woman marries a person outside Jammu and Kashmir, then she loses property rights as well as employment opportunities in the state. While Jammu and Kashmir’s Non-Permanent Resident Certificate holders can vote in Lok Sabha elections, the same individual is barred to vote in local elections in the state.

Constitution bench: It is the name given to the benches of the Supreme Court of India, which consist of at least five judges of the court, which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India. This provision has been mandated by Article 145 (3) of the Constitution of India. The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it. The following are the famous cases so far heard/being heard by the Constitution Bench:

  • Kesavnanada Bharti Case
  • P.H. Kalyani vs. Air France (1964) 2 SCR 104
  • The Hebaus Corpus Case
  • Menaka Gandhi vs. The Union of India
  • The Union of India vs. Raghubeer Singh (1989) 2SCC 754
  • Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC
  • The State of Karnataka and Others v. Uma Devi and Others (2006) 4 SCC 1 
  • Gian Kaur judgment on Right to Life does not include Right to die.
  • National Judicial Appointment Commission (NJAC)
  • Entry Tax on Goods
  • NEET
  • Multiple Life Sentences
  • Enactment of a law on the lines of Patient Autonomy and Self-determination Act of the USA.
  • Gohattya Case (The State of Gujarat vs. Mirzapur Moti Qureshi 2005)
  • Kerala Sabrimala Issue
  • Transfer of Cases from State of Jammu and Kashmir
  • Hindutva judgment for electoral gains
  • Triple Talaq
  • The right to Privacy can be declared as a Fundamental Right (Aadhaar petition).
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