Press Trust of india

SC to take 'in-chamber' decision on listing of plea challenging Article 35-A

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New Delhi, Jan 22:  The Supreme Court on Tuesday said it would take an "in-chamber" decision on listing of a petition challenging the constitutional validity of Article 35-A, which provides special rights and privileges to permanent residents of Jammu and Kashmir.

Advocate Bimal Roy had mentioned the matter before the bench headed by Chief Justice Ranjan Gogoi and also comprising Justices L Nageswara Rao and Sanjiv Khanna.

He sought urgent hearing of the petition, filed by NGO 'We The Citizens', saying the court had earlier ordered listing of the matter in the second week of January.

The apex court had on August 31 deferred till January the hearing on the pleas challenging the constitutional validity of Article 35-A, which provides special rights and privileges to natives of Jammu and Kashmir, after the Centre and the State said that polls to local bodies polls there would go on till December.

The Article was incorporated in the Constitution in 1954 by an order of President Rajendra Prasad on the advice of the then Cabinet headed by Jawaharlal Nehru.

In the previous hearing, a lawyer had given an illustration and said that if a native woman of the state married an outsider, she loses several rights, including property rights, in the state, but if a man marries a Pakistani woman, he and his spouse get all rights.

Additional Solicitor General Tushar Mehta, however, had agreed to the contention that Article 35-A and certain aspects needed to be debated upon and said, "It can't be denied that there is an aspect of gender discrimination in it (Article 35-A).”

On August 06, the apex court had said that a three-judge bench would decide whether the pleas challenging Article 35-A should be referred to a five-judge constitution bench for examining the larger issue of alleged violation of the doctrine of basic structure of the Constitution.

Several petitions including by political parties like the National Conference and the CPI-M, have also moved the Supreme Court in support of Article 35-A that empowers the State Assembly to define "permanent residents" for bestowing special rights and privileges to them.

An NGO, 'Ikkjut Jammu', has also filed a plea seeking quashing of the provision. It has said that Article 35-A furthers the "two nation theory which is against the theory of secularism".

The State government, while defending the Article, had cited two verdicts of 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.

J&K women marrying non-natives don't lose residency rights: Expert

Srinagar, Jan 22: Women hailing from Jammu and Kashmir who choose to marry men from outside the state do not lose their residency and inheritance rights under Article 35-A of the Constitution, a top legal expert said on Tuesday.

"This issue was settled by a full bench of Jammu and Kashmir High Court in the case titled State and others vs Dr Susheela Sawhney and others in October 2002 by striking down the proviso of the state subject (permanent residency) law according to which women marrying outsiders would lose their permanent resident status," former advocate general of Jammu and Kashmir government Ishaq Qadri told PTI.

The bench, in the landmark judgement on 07 October 2002, held by a majority view that the daughter of a permanent resident of Jammu and Kashmir will not lose her status as a permanent resident upon her marriage to a person from outside the state.

Qadri's remarks come after the Supreme Court said earlier on Tuesday it would take an "in-chamber" decision on listing of a petition challenging the constitutional validity of Article 35-A, which provides special rights and privileges to permanent residents of Jammu and Kashmir.

He said the then PDP-Congress coalition government challenged the verdict in the Supreme Court but later withdrew its petition.

"Then law minister Muzaffar Hussain Beigh brought Jammu and Kashmir Permanent Resident Status (Disqualification) Bill 2004 in the state legislative assembly and it was passed by the lower house in March 2004," the former advocate general said.

"Since it was a Constitutional amendment bill, it needed two-thirds majority to be passed. The National Conference, which was in the opposition, supported it, ensuring the passage of the bill in the assembly," Qadri said.

Had the bill passed the scrutiny of the legislative council -- the upper house of the state legislature -- and got the governor's assent, the women marrying men outside the state would have lost their status as permanent residents, he added.

However, there was an outcry against the bill, mainly in the Jammu region.

It was taken up for discussion in the legislative council but the then chairman Abdul Rashid Dar adjourned the House sine die without taking a vote on it, Qadri said.

"As a result, the bill lapsed and it was never reintroduced," he said, adding that the high court ruling on the permanent residency rights of women marrying outside the state stands as on date.

Article 35-A was incorporated in the Constitution in 1954 by an order of President Rajendra Prasad on the advice of the then Cabinet headed by Jawaharlal Nehru.

In the previous hearing of the petition filed by NGO 'We The Citizens', a lawyer had given an illustration and said if a native woman of the state married an outsider, she loses several rights, including property rights, in the state, but if a man marries a Pakistani woman, he and his spouse get all rights.

Additional Solicitor General Tushar Mehta, who is representing the Jammu and Kashmir government in the apex court, had agreed to the contention that Article 35-A and certain aspects needed to be debated upon.

He said, "It can't be denied that there is an aspect of gender discrimination in it (Article 35A)."

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