Writ Petition (Civil) No. 396 of 2017

Constitutionality of Article 35A

Case Description

This case will decide the constitutional validity of Article 35A of the Constitution, which empowers the State of Jammu and Kashmir to frame any law without attracting a constitutional challenge.

Background

Four petitions have been filed before the Supreme Court challenging the constitutional validity of Article 35A of the Constitution.

Article 35A of the Constitution of India was introduced by the Constitution (Application to J&K) Order 1954, issued under Article 370. It empowers the State of Jammu and Kashmir to frame any law without attracting a constitutional challenge.

This Article has been challenged on the basis that it was introduced through a presidential order passed in 1954. If this claim were to be accepted, a large number of provisions in the Constitution of Jammu and Kashmir would become invalid.

Further, these petitions challenge the validity of Section 6 of the Constitution of Jammu and Kashmir. Section 8 of the Constitution of Jammu and Kashmir allows the State Legislature to define permanent residents of Jammu and Kashmir, conferring on them the right to own land, hold government jobs and settle down in the state. By virtue of section 6 of the Constitution of Jammu and Kashmir, a female descendant of a permanent resident of the State loses her status of permanent resident on marrying a non – permanent resident of the State. Notably, the same disqualification does affect a man who has married a non-resident of the State. Thus, this provision has been contested on grounds of gender discrimination and violation of Article 14 of the Constitution of India.

Note: The Constitution of Jammu and Kashmir defines a Permanent Resident as a person who was a state subject on May 14, 1954 or has been residing in the state for a period of 10 years and has lawfully acquired immovable property in the state. The origin of this provision can be traced back to a law passed by Maharaja Hari Singh to safeguard the rights and unique identity of the people of the state, particularly the Dogra community of Jammu and Kashmiri Pandits.

The State of Jammu and Kashmir has countered this with the contention that the position in this matter has been settled by the High Court of Jammu and Kashmir in the Sushila Sawhney case of 2002 where it was held that the daughter of a Permanent Resident marrying a non Permanent Resident does not lose her status of Permanent Resident. Thus, there is no discrimination in the law after this decision.

However, in this case, the court did not decide the matter of the rights of the children and spouses of such women.

The J&K government initially filed a Special Leave Petition against this decision but withdrew it. A Revenue Committee constituted to recommend guidelines on the issuance of Permanent Resident Certificate submitted its report, but did not seek any concrete changes in the law.

Ms Khanna filed the writ petition after the J&K government refused to identify her as a permanent resident because she did not have any documentary evidence to prove her claim. She claims that she has anecdotal evidence of her ancestry as a Kashmiri Pandit to support her claim. She seeks to build a home in J&K to re-establish her roots but being a Non-Permanent Resident, she cannot buy property there.

The petitions came up before a 3-Judge Bench comprising Chief Justice Dipak Misra, and Justices A.M. KhanwilkarD.Y. Chandrachud. The matter has now been tagged with We the Citizens vs. Union of India (Writ Petition (Civil) No.722/2014).


Issues

  1. Whether Article 35A of the Constitution is constitutional.
  2. Whether Section 6 of the Jammu and Kashmir Constitution violates Article 14 of the Constitution of India.

Resources

Latest Hearing


Judgment Pending

Matter tagged with W.P.(Civil) No.722 of 2014.



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