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J&K CPM unit moves Supreme Court in support of Article 35A, seeks special status for 'permanent residents'

New Delhi: CPM's Jammu and Kashmir unit moved the Supreme Court in support of the Constitution's Article 35A that empowers the state assembly to define 'permanent residents' for conferring special rights and privileges to them. The Left party sought a nod to intervene in a pending writ petition through its state committee member and Khulgam MLA Mohammed Yousuf Tarigami.

The apex court is already seized of Public Interest Litigation (PIL) 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 party, which is seeking intervention in the "We the Citizens" petition, said it is of the unequivocal opinion that Article 35A, shall in "no circumstance be annulled, modified or repealed".

File image of Supreme Court of India. Reuters

File image of Supreme Court of India. Reuters

"Further, the special status guaranteed to the State of Jammu and Kashmir under the Constitution of India, which has assumed the permanent feature of the Constitution, requires protection as any alteration would be against the policy of federalism envisaged by the framers of the Constitution," the intervention application filed by the party said.

It sought direction from the court for intervention in the pending matter.

A batch of petitions challenging the Article 35A will come up for hearing on 6 August.

On 14 May, Attorney General KK 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 35A of the Constitution.

He had said an 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 23 October, 2017.

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 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 35A by various individuals and civil society groups seeking continuance of the special status to Jammu and Kashmir.

Jammu and Kashmir through its standing counsel Shoeb Alam had referred to two judgments by the constitution bench of the apex court and said the issues raised in the pleas challenging Article 35A were covered by these verdicts.

The state government, while defending Article 35A, had cited two verdicts by the constitution bench 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 14 August, 2017 said a constitution bench may examine whether Article 35A 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 35A 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.


Updated Date: Jul 31, 2018 23:05 PM

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