SC Hints A Constitution Bench May Hear Petitions Challenging Art 35 A

A two – judge bench of the Supreme Court headed by Justice Dipak Misra today said all petitions challenging the validity of Article 35 A which confers special status to Jammu and Kashmir pending before it should ideally go before a five judge bench.

Saying this, the bench tagged a petition filed by a Supreme Court lawyer Charu Wali Khanna with another pending petition in which the Attorney General K K Venugopal has been asked to address the court.

“When the constitutional validity of an article is under challenge, it has to go before a five judge bench”, remarked Justice Misra.

Khanna has challenged the article on the ground of gender discrimination. The hearing comes four weeks after the Modi government told the Supreme Court, during the hearing of another petition challenging the article that it wanted a “larger debate” on the issue.

Khanna stated: “Article 14 of Constitution gives a fundamental right to equality before law. But 35 A is heavily loaded in favour of males because even after marriage to women from outside they will not lose the right of being permanent residents. A woman from outside the state shall became a permanent resident on marrying a male permanent resident of the state but a daughter who is born state subject will loss the right on marrying an outsider.”

Married out of her caste and settled outside the state, Wali Khanna became a non-permanent resident. “Despite being a Kashmiri Pandit by origin, the state does not recognise me as its citizen,” Khanna says in the petition

 “I desired to build a home in Jammu and Kashmir in order to re-discover my roots but was barred by the peculiar, discriminatory law in doing so,” she said. “Unreasonable classification between males and females and between females and females is against the spirit of Article 14 of the Constitution.”

Article 35A allows the Jammu and Kashmir legislature to define the list of ‘permanent residents’ of the state, who are eligible to vote, work for the state government, own land, secure, public employment and college admissions etc. Non-permanent residents are denied all these rights.

But the lawyer appearing for Jammu and Kashmir government said a full bench  of the J &K High Court had in 2002 held that daughter of permanent resident marrying a non-permanent citizen would not  lose property rights.