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Article 35A: Tarigami files Intervention Application in SC

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“It shall in no circumstance be annulled, modified or repealed"

New Delhi: The CPI (M)'s Jammu and Kashmir unit today 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 PILs 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petition, said it is of the unequivocal opinion that Article 35 A, shall in "no circumstance be annulled, modified or repealed".

"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.

The petition reads: “The State of Jammu & Kashmir is the only State in the Union of India which negotiated the terms of its membership with the union….

“Jammu & Kashmir was the only state to declare its intention to have its own constitution drafted by its own constituent assembly, as far back as 5th March 1948. At the time of partition and after, it was free to accede to Pakistan or India, or to become an Independent country. But it decided to accede to India on specific terms, despite the fact that religiously the majority population was following Islam.

“This unique circumstance was a matter of prime consideration for evolving constitutional machinery to prescribe relationship of the state with the Union of India. Article 370 embodies this basic principle of solemn compact pact. It is the machinery to integrate the people of Kashmir with India with heart and soul and to stop their alienation….Article 35A is very much necessary, in this context, not to cause further alienation of Kashmiri People from India.”

P.V. Surendranath will appear for the party in the intervention application filed through Resmitha R.Chandran, Advocate-On-record.

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

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 35A of the Constitution.

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 August 14 last year 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.

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