Know the Parties: Article 35A Case

Petitioners

1.) Charu Wali Khanna – She filed a petition contending that Article 35A of the Indian Constitution and Article 6 of the J&K Constitution are in contradiction with Article 14 of the Indian Constitution, the right to equality. She further contends that Article 6 is discriminatory to women, Article 15(1) of the Indian Constitution. She lost her Permanent Resident status when she married a non-Permanent Resident, and thereby was denied the right to build a home in J&K.

Interestingly, Ms. Charu Wali Khanna happens to be a Supreme Court lawyer.

 

2.) We the Citizens – This is a Delhi based NGO which filed the first petition challenging the constitutional validity of Article 35A, in 2014. They contend that Article 35A is invalid as it is extra-constitutional; 35A is not contained in the text of the Constitution. Article 35A is an unusual provision. It was introduced by a 1954 Presidential Order of Rajendra Prasad on the advice of the then Prime Minister Jawaharlal Nehru. However, it was never ratified by the Parliament, via Article 368. We the Citizens question whether a Presidential Order that introduces a non-ratified constitutional amendment can be considered competent.

 

3)  Radhika Gill, Eklavya and Vijay Kumar – Residents of Valmiki Colony, Gandhi Nagar in Jammu – challenged the validity of the 1954 Presidential Order on the ground that it violated their fundamental rights, including the right to equality, the right to non-discrimination, the right to equality of opportunity in public employment and the right to reside.

These petitioners are representing more than 4,000 persons belonging to the second, third and fourth generation of 272 Safai Karmcharies (sweepers), who despite living in J&K have not got the rights to residency, reservation in employment or other fundamental rights.

 

Respondents

 4) . The State of Jammu and Kashmir – The State of Jammu and Kashmir denies that Article 6 of its Constitution violates Article 14 of the Indian Constitution. In particular, it has argued against the notion that Article 6 discriminates on the basis of gender.  It points to Sushila Sawhney, where the Jammu and Kashmir High Court held that the Permanent Residency a Permanent Resident’s daughter acquires, will not be lost if she gets married to an individual who is not a Permanent Resident.

 

5) Union of India – Wanting to remain politically neutral, the Union has taken no formal stand on the matter. Attorney General K.K. Venugopal has invited debate on the question of Article 35A’s validity.